CHAPTER VIII.

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.

The Rights of War and Peace · 第 8 / 21 章