Chapter 16
Of Conquest
§. 175. THOUGH governments can originally have no other rise than that before
mentioned, nor polities be founded on anything but the consent of the people,
yet such have been the disorders ambition has filled the world with, that in
the noise of war, which makes so great a part of the history of mankind, this
consent is little taken notice of; and, therefore, many have mistaken the force
of arms for the consent of the people, and reckon conquest as one of the
originals of government. But conquest is as far from setting up any government
as demolishing a house is from building a new one in the place. Indeed, it
often makes way for a new frame of a commonwealth by destroying the former;
but, without the consent of the people, can never erect a new one.
§. 176. That the aggressor, who puts himself into the state of war with
another, and unjustly invades another man's right, can, by such an unjust war,
never come to have a right over the conquered, will be easily agreed by all
men, who will not think that robbers and pirates have a right of empire over
whomsoever they have force enough to master, or that men are bound by promises
which unlawful force extorts from them. Should a robber break into my house,
and, with a dagger at my throat, make me seal deeds to convey my estate to him,
would this give him any title? Just such a title by his sword has an unjust
conqueror who forces me into submission. The injury and the crime is equal,
whether committed by the wearer of a crown or some petty villain. The title of
the offender and the number of his followers make no difference in the offence,
unless it be to aggravate it. The only difference is, great robbers punish
little ones to keep them in their obedience; but the great ones are rewarded
with laurels and triumphs, because they are too big for the weak hands of
justice in this world, and have the power in their own possession which should
punish offenders. What is my remedy against a robber that so broke into my
house? Appeal to the law for justice. But perhaps justice is denied, or I am
crippled and cannot stir; robbed, and have not the means to do it. If God has
taken away all means of seeking remedy, there is nothing left but patience. But
my son, when able, may seek the relief of the law, which I am denied; he or his
son may renew his appeal till he recover his right. But the conquered, or their
children, have no court — no arbitrator on earth to appeal to. Then they
may appeal, as Jephtha did, to Heaven, and repeat their appeal till they have
recovered the native right of their ancestors, which was to have such a
legislative over them as the majority should approve and freely acquiesce in.
If it be objected this would cause endless trouble, I answer, no more than
justice does, where she lies open to all that appeal to her. He that troubles
his neighbour without a cause is punished for it by the justice of the court he
appeals to. And he that appeals to Heaven must be sure he has right on his
side, and a right, too, that is worth the trouble and cost of the appeal, as he
will answer at a tribunal that cannot be deceived, and will be sure to
retribute to every one according to the mischiefs he hath created to his
fellow-subjects — that is, any part of mankind. From whence it is plain
that he that conquers in an unjust war can thereby have no title to the
subjection and obedience of the conquered.
§. 177. But supposing victory favours the right side, let us consider a
conqueror in a lawful war, and see what power he gets, and over whom.
First, it is plain he gets no power by his conquest over those that
conquered with him. They that fought on his side cannot suffer by the conquest,
but must, at least, be as much free men as they were before. And most commonly
they serve upon terms, and on condition to share with their leader, and enjoy a
part of the spoil and other advantages that attend the conquering sword, or, at
least, have a part of the subdued country bestowed upon them. And the
conquering people are not, I hope, to be slaves by conquest, and wear their
laurels only to show they are sacrifices to their leader's triumph. They that
found absolute monarchy upon the title of the sword make their heroes, who are
the founders of such monarchies, arrant "draw-can-sirs," and forget
they had any officers and soldiers that fought on their side in the battles
they won, or assisted them in the subduing, or shared in possessing the
countries they mastered. We are told by some that the English monarchy is
founded in the Norman Conquest, and that our princes have thereby a title to
absolute dominion, which, if it were true (as by the history it appears
otherwise), and that William had a right to make war on this island, yet his
dominion by conquest could reach no farther than to the Saxons and Britons that
were then inhabitants of this country. The Normans that came with him and
helped to conquer, and all descended from them, are free men and no subjects by
conquest, let that give what dominion it will. And if I or anybody else shall
claim freedom as derived from them, it will be very hard to prove the contrary;
and it is plain, the law that has made no distinction between the one and the
other intends not there should be any difference in their freedom or
privileges.
§. 178. But supposing, which seldom happens, that the conquerors and conquered
never incorporate into one people under the same laws and freedom; let us see
next what power a lawful conqueror has over the subdued, and that I say is
purely despotical. He has an absolute power over the lives of those who, by an
unjust war, have forfeited them, but not over the lives or fortunes of those
who engaged not in the war, nor over the possessions even of those who were
actually engaged in it.
§. 179. Secondly, I say, then, the conqueror gets no power but only over those
who have actually assisted, concurred, or consented to that unjust force that
is used against him. For the people having given to their governors no power to
do an unjust thing, such as is to make an unjust war (for they never had such a
power in themselves), they ought not to be charged as guilty of the violence
and injustice that is committed in an unjust war any farther than they actually
abet it, no more than they are to be thought guilty of any violence or
oppression their governors should use upon the people themselves or any part of
their fellow-subjects, they having empowered them no more to the one than to
the other. Conquerors, it is true, seldom trouble themselves to make the
distinction, but they willingly permit the confusion of war to sweep all
together; but yet this alters not the right; for the conqueror's power over the
lives of the conquered being only because they have used force to do or
maintain an injustice, he can have that power only over those who have
concurred in that force; all the rest are innocent, and he has no more title
over the people of that country who have done him no injury, and so have made
no forfeiture of their lives, than he has over any other who, without any
injuries or provocations, have lived upon fair terms with him.
§. 180. Thirdly, the power a conqueror gets over those he overcomes in a just
war is perfectly despotical; he has an absolute power over the lives of those
who, by putting themselves in a state of war, have forfeited them, but he has
not thereby a right and title to their possessions. This I doubt not but at
first sight will seem a strange doctrine, it being so quite contrary to the
practice of the world; there being nothing more familiar in speaking of the
dominion of countries than to say such an one conquered it, as if conquest,
without any more ado, conveyed a right of possession. But when we consider that
the practice of the strong and powerful, how universal soever it may be, is
seldom the rule of right, however it be one part of the subjection of the
conquered not to argue against the conditions cut out to them by the conquering
swords.
§. 181. Though in all war there be usually a complication of force and damage,
and the aggressor seldom fails to harm the estate when he uses force against
the persons of those he makes war upon, yet it is the use of force only that
puts a man into the state of war. For whether by force he begins the injury, or
else having quietly and by fraud done the injury, he refuses to make
reparation, and by force maintains it, which is the same thing as at first to
have done it by force; it is the unjust use of force that makes the war. For he
that breaks open my house and violently turns me out of doors, or having
peaceably got in, by force keeps me out, does, in effect, the same thing;
supposing we are in such a state that we have no common judge on earth whom I
may appeal to, and to whom we are both obliged to submit, for of such I am now
speaking. It is the unjust use of force, then, that puts a man into the state
of war with another, and thereby he that is guilty of it makes a forfeiture of
his life. For quitting reason, which is the rule given between man and man, and
using force, the way of beasts, he becomes liable to be destroyed by him he
uses force against, as any savage ravenous beast that is dangerous to his
being.
§. 182. But because the miscarriages of the father are no faults of the
children, who may be rational and peaceable, notwithstanding the brutishness
and injustice of the father, the father, by his miscarriages and violence, can
forfeit but his own life, and involves not his children in his guilt or
destruction. His goods which Nature, that willeth the preservation of all
mankind as much as is possible, hath made to belong to the children to keep
them from perishing, do still continue to belong to his children. For supposing
them not to have joined in the war either through infancy or choice, they have
done nothing to forfeit them, nor has the conqueror any right to take them away
by the bare right of having subdued him that by force attempted his
destruction, though, perhaps, he may have some right to them to repair the
damages he has sustained by the war, and the defence of his own right, which
how far it reaches to the possessions of the conquered we shall see by-and-by;
so that he that by conquest has a right over a man's person, to destroy him if
he pleases, has not thereby a right over his estate to possess and enjoy it.
For it is the brutal force the aggressor has used that gives his adversary a
right to take away his life and destroy him, if he pleases, as a noxious
creature; but it is damage sustained that alone gives him title to another
man's goods; for though I may kill a thief that sets on me in the highway, yet
I may not (which seems less) take away his money and let him go; this would be
robbery on my side. His force, and the state of war he put himself in, made him
forfeit his life, but gave me no title to his goods. The right, then, of
conquest extends only to the lives of those who joined in the war, but not to
their estates, but only in order to make reparation for the damages received
and the charges of the war, and that, too, with reservation of the right of the
innocent wife and children.
§. 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.
§. 184. But supposing the charge and damages of the war are to be made up to
the conqueror to the utmost farthing, and that the children of the vanquished,
spoiled of all their father's goods, are to be left to starve and perish, yet
the satisfying of what shall, on this score, be due to the conqueror will
scarce give him a title to any country he shall conquer. For the damages of war
can scarce amount to the value of any considerable tract of land in any part of
the world, where all the land is possessed, and none lies waste. And if I have
not taken away the conqueror's land which, being vanquished, it is impossible I
should, scarce any other spoil I have done him can amount to the value of mine,
supposing it of an extent any way coming near what I had overrun of his, and
equally cultivated too. The destruction of a year's product or two (for it
seldom reaches four or five) is the utmost spoil that usually can be done. For
as to money, and such riches and treasure taken away, these are none of
Nature's goods, they have but a phantastical imaginary value; Nature has put no
such upon them. They are of no more account by her standard than the Wampompeke
of the Americans to an European prince, or the silver money of Europe would
have been formerly to an American. And five years' product is not worth the
perpetual inheritance of land, where all is possessed and none remains waste,
to be taken up by him that is disseised, which will be easily granted, if one
do but take away the imaginary value of money, the disproportion being more
than between five and five thousand; though, at the same time, half a year's
product is more worth than the inheritance where, there being more land than
the inhabitants possess and make use of, any one has liberty to make use of the
waste. But their conquerors take little care to possess themselves of the lands
of the vanquished. No damage therefore that men in the state of Nature (as all
princes and governments are in reference to one another) suffer from one
another can give a conqueror power to dispossess the posterity of the
vanquished, and turn them out of that inheritance which ought to be the
possession of them and their descendants to all generations. The conqueror
indeed will be apt to think himself master; and it is the very condition of the
subdued not to be able to dispute their right. But, if that be all, it gives no
other title than what bare force gives to the stronger over the weaker; and, by
this reason, he that is strongest will have a right to whatever he pleases to
seize on.
§. 185. Over those, then, that joined with him in the war, and over those of
the subdued country that opposed him not, and the posterity even of those that
did, the conqueror, even in a just war, hath, by his conquest, no right of
dominion. They are free from any subjection to him, and if their former
government be dissolved, they are at liberty to begin and erect another to
themselves.
§. 186. The conqueror, it is true, usually by the force he has over them,
compels them, with a sword at their breasts, to stoop to his conditions, and
submit to such a government as he pleases to afford them; but the inquiry is,
what right he has to do so? If it be said they submit by their own consent,
then this allows their own consent to be necessary to give the conqueror a
title to rule over them. It remains only to be considered whether promises,
extorted by force, without right, can be thought consent, and how far they
bind. To which I shall say, they bind not at all; because whatsoever another
gets from me by force, I still retain the right of, and he is obliged presently
to restore. He that forces my horse from me ought presently to restore him, and
I have still a right to retake him. By the same reason, he that forced a
promise from me ought presently to restore it — i.e., quit me of the
obligation of it; or I may resume it myself — i.e., choose whether I will
perform it. For the law of Nature laying an obligation on me, only by the rules
she prescribes, cannot oblige me by the violation of her rules; such is the
extorting anything from me by force. Nor does it at all alter the case, to say
I gave my promise, no more than it excuses the force, and passes the right,
when I put my hand in my pocket and deliver my purse myself to a thief who
demands it with a pistol at my breast.
§. 187. From all which it follows that the government of a conqueror, imposed
by force on the subdued, against whom he had no right of war, or who joined not
in the war against him, where he had right, has no obligation upon them.
§. 188. But let us suppose that all the men of that community being all
members of the same body politic, may be taken to have joined in that unjust
war, wherein they are subdued, and so their lives are at the mercy of the
conqueror.
§. 189. I say this concerns not their children who are in their minority. For
since a father hath not, in himself, a power over the life or liberty of his
child, no act of his can possibly forfeit it; so that the children, whatever
may have happened to the fathers, are free men, and the absolute power of the
conqueror reaches no farther than the persons of the men that were subdued by
him, and dies with them; and should he govern them as slaves, subjected to his
absolute, arbitrary power, he has no such right of dominion over their
children. He can have no power over them but by their own consent, whatever he
may drive them to say or do, and he has no lawful authority, whilst force, and
not choice, compels them to submission.
§. 190. Every man is born with a double right. First, a right of freedom to
his person, which no other man has a power over, but the free disposal of it
lies in himself. Secondly, a right before any other man, to inherit, with his
brethren, his father's goods.
§. 191. By the first of these, a man is naturally free from subjection to any
government, though he be born in a place under its jurisdiction. But if he
disclaim the lawful government of the country he was born in, he must also quit
the right that belonged to him, by the laws of it, and the possessions there
descending to him from his ancestors, if it were a government made by their
consent.
§. 192. By the second, the inhabitants of any country, who are descended and
derive a title to their estates from those who are subdued, and had a
government forced upon them, against their free consents, retain a right to the
possession of their ancestors, though they consent not freely to the
government, whose hard conditions were, by force, imposed on the possessors of
that country. For the first conqueror never having had a title to the land of
that country, the people, who are the descendants of, or claim under those who
were forced to submit to the yoke of a government by constraint, have always a
right to shake it off, and free themselves from the usurpation or tyranny the
sword hath brought in upon them, till their rulers put them under such a frame
of government as they willingly and of choice consent to (which they can never
be supposed to do, till either they are put in a full state of liberty to
choose their government and governors, or at least till they have such standing
laws to which they have, by themselves or their representatives, given their
free consent, and also till they are allowed their due property, which is so to
be proprietors of what they have that nobody can take away any part of it
without their own consent, without which, men under any government are not in
the state of free men, but are direct slaves under the force of war). And who
doubts but the Grecian Christians, descendants of the ancient possessors of
that country, may justly cast off the Turkish yoke they have so long groaned
under, whenever they have a power to do it?
§. 193. But granting that the conqueror, in a just war, has a right to the
estates, as well as power over the persons of the conquered, which, it is
plain, he hath not, nothing of absolute power will follow from hence in the
continuance of the government. Because the descendants of these being all free
men, if he grants them estates and possessions to inhabit his country, without
which it would be worth nothing, whatsoever he grants them they have so far as
it is granted property in; the nature whereof is, that, without a man's own
consent, it cannot be taken from him.
§. 194. Their persons are free by a native right, and their properties, be
they more or less, are their own, and at their own dispose, and not at his; or
else it is no property. Supposing the conqueror gives to one man a thousand
acres, to him and his heirs for ever; to another he lets a thousand acres, for
his life, under the rent of L50 or L500 per annum. Has not the one of these a
right to his thousand acres for ever, and the other during his life, paying the
said rent? And hath not the tenant for life a property in all that he gets over
and above his rent, by his labour and industry, during the said term, supposing
it be double the rent? Can any one say, the king, or conqueror, after his
grant, may, by his power of conqueror, take away all, or part of the land, from
the heirs of one, or from the other during his life, he paying the rent? Or,
can he take away from either the goods or money they have got upon the said
land at his pleasure? If he can, then all free and voluntary contracts cease,
and are void in the world; there needs nothing but power enough to dissolve
them at any time, and all the grants and promises of men in power are but
mockery and collusion. For can there be anything more ridiculous than to say, I
give you and yours this for ever, and that in the surest and most solemn way of
conveyance can be devised, and yet it is to be understood that I have right, if
I please, to take it away from you again to-morrow?
§. 195. I will not dispute now whether princes are exempt from the laws of
their country, but this I am sure, they owe subjection to the laws of God and
Nature. Nobody, no power can exempt them from the obligations of that eternal
law. Those are so great and so strong in the case of promises, that Omnipotency
itself can be tied by them. Grants, promises, and oaths are bonds that hold the
Almighty, whatever some flatterers say to princes of the world, who, all
together, with all their people joined to them, are, in comparison of the great
God, but as a drop of the bucket, or a dust on the balance —
inconsiderable, nothing!
§. 196. The short of the case in conquest, is this: The conqueror, if he have
a just cause, has a despotical right over the persons of all that actually
aided and concurred in the war against him, and a right to make up his damage
and cost out of their labour and estates, so he injure not the right of any
other. Over the rest of the people, if there were any that consented not to the
war, and over the children of the captives themselves or the possessions of
either he has no power, and so can have, by virtue of conquest, no lawful title
himself to dominion over them, or derive it to his posterity; but is an
aggressor, and puts himself in a state of war against them, and has no better a
right of principality, he, nor any of his successors, than Hingar, or Hubba,
the Danes, had here in England, or Spartacus, had be conquered Italy, which is
to have their yoke cast off as soon as God shall give those under their
subjection courage and opportunity to do it. Thus, notwithstanding whatever
title the kings of Assyria had over Judah, by the sword, God assisted Hezekiah
to throw off the dominion of that conquering empire. "And the Lord was
with Hezekiah, and he prospered; wherefore he went forth, and he rebelled
against the king of Assyria, and served him not" (II Kings 18. 7). Whence
it is plain that shaking off a power which force, and not right, hath set over
any one, though it hath the name of rebellion, yet is no offence before God,
but that which He allows and countenances, though even promises and covenants,
when obtained by force, have intervened. For it is very probable, to any one
that reads the story of Ahaz and Hezekiah attentively, that the Assyrians
subdued Ahaz, and deposed him, and made Hezekiah king in his father's lifetime,
and that Hezekiah, by agreement, had done him homage, and paid him tribute till
this time.