ON EMPIRE OVER THE CONQUERED.
Civil and sovereign jurisdiction acquired by conquest--Effects
of such acquisition--Absolute power or mixed power gained
by conquest--Incorporeal rights acquired in the same
manner--Thessalian bond considered.
I. If individuals can reduce each other to subjection, it is not
surprising that states can do the same, and by this means acquire
a civil, absolute, or mixed, dominion. So that, in the language of
Tertullian, victory has often been the foundation of dominion, and it
often happens, as Quintilian remarks, that the boundaries of states and
kingdoms, of nations and cities, can only be settled by the laws of war.
Quintus Curtius relates of Alexander, that he said, it was for
conquerors to dictate laws, which the conquered were bound to receive.
This has always been a general opinion and rule, thus Ariovistus, in
Caesar, laid it down as an indubitable right of war, for the conqueror
to impose whatever terms he pleased upon the conquered, nor did he
suppose the Roman people would allow any one to interpose with them in
the discretionary use of this right.
By conquest, a prince succeeds to all the rights of the conquered
sovereign or state; and if it be a commonwealth, he acquires all the
rights and privileges, which the people possessed. He gains the same
right, which the state had before, to alienate the possessions, or to
transmit them if he chuses to his descendants, by which means they will
become a patrimonial territory.
II. The right of conquest may go even beyond this. A state may hereby
lose its political existence, so far as to form an appendage to another
power, which was the case with the Roman provinces: or if a king
engaged in war against a state, at his own expence, has reduced it to
complete subjection, his authority over it becomes an absolute, rather
than a limited sovereignty. It can no longer be called an independent
state, but, by the right of conquest, forms an integral part of the
prince's immediate dominions. Xenophon in drawing the character of
Agesilaus, commends him for requiring no other services and obedience
of the cities he had conquered, than what is usually paid by subjects
to their lawful sovereigns.
III. From hence it will be easy to understand what is meant by a mixed
government, composed partly of civil, and partly of absolute power;--it
is a government, where subjection is united with some degree of
personal liberty.
We sometimes read of nations, that have been so far subdued, as to be
deprived of the use of all warlike arms, being allowed to retain no
instruments of iron, but the implements of husbandry; and of others,
that have been compelled to change their national customs and language.
IV. States as well as individuals may lose their property by the laws
of war: and even a voluntary surrender is in reality nothing more
than giving up what might have been taken by force. For as Livy says,
where all things submit to the power of arms, the conqueror may impose
whatever terms, and exact whatever fines he pleases. Thus the Roman
people by the victories of Pompey acquired all the territories, which
Mithridates had gained by conquest.
The incorporeal rights too, belonging to one state, may pass to another
by the rights of conquest. Upon the taking of Alba, the Romans retained
all the rights belonging to that city. From hence it follows, that the
Thessalians were released from the obligation of paying a sum of money,
which they owed to the Thebans; Alexander, upon the taking of Thebes,
having, as a conqueror, forgiven the debt. Nor is the argument used by
Quintilian in favour of the Thebans, at all convincing: he maintains
that nothing but what is of a tangible nature can pass by right of
conquest, a class of things to which incorporeal rights can never be
reduced: and that there is a material difference between inheritance
and victory, the former of which may convey incorporeal rights, but the
latter can give nothing except things of a solid and visible substance.
But on the other hand it may be justly said, that whoever is master of
the persons, is master also of all the rights and things, which are
vested in those persons, who are in that case considered as having
nothing of their own. Indeed if any one should leave to a conquered
people their rights, as a state, still there are some things belonging
to that state, which he might appropriate to himself. For it is in his
own power to determine, to what extent his generosity, or the exertion
of his right shall go. Caesar imitated the conduct of Alexander, in
forgiving the Dyrrachians a debt, which they owed to some one of the
opposite party. But the kind of war, in which Caesar was engaged does
not fall within the rules of the law of nations.