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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.
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.
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
It is the “unjust use of force 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.
But because the miscarriages of the father are no faults of the children, and they may be rational and peaceable, notwithstanding the brutishness and injustice of the father; the father, by his miscarriages and violences, can forfeit but his own life, but 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 them to belong to the children to keep them from perishing, do still belong to his children: for supposing them not to have joined in the war, either through infancy, absence, or choice, they have done nothing to forfeit them; nor has the conqueror any right to take them away, by the bare title of having subdued him that by force attempted his destruction ; though perhaps he may have some right to them, to repair the damage 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, 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 the reservation of the right of the innocent wife and children.
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 comes 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 labor 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 labor, or conpact, 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.
Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity of even 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.
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 has he 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 borse 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 presenty 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 rales 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.
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.
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. 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 freemen, 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 or 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.
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 which the sword had brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to. Who doubts but the Grecian Christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke, which they have so long groaned under, whenever they have an opportunity to do it ? For no government can have a right to obedience from a people who have not freely consented to it; 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 freemen, but are direct slaves under the force of war.
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 labor 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, if he attempts upon their properties, and thereby 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 he conquered Italy, would have had; which is to have their yoke cast off, as soon as God shall give those under their subjection courage and opportunity to do it. This, 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.” (2 Kings xviii. 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 is 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 Abaz, 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 all this time.