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their appeal till they have recovered the native right of their ancestors, which was, to have such a legiflative 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 fhe lies open to all that appeal to her. He that troubles his neighbour without a cause, is punilhed 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 fide; 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 fide cannot suffer by the conquest, but must at least be as much freemen 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 Аа 2
that attend the conquering sword; or at least have a part of the subdued country bestowed
them. And the conquering people are not, I bope, to be saves by conquest, and weat their laurels only to shew they are facrifices to their leaders 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-firs, and forget they had any officers and soldiers that fought on their side in the battles they won, or aflisted 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 freemen, and no subjects by conquest; let that give what dominion it will. And if I, or any body 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 fame 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.
f. 179. Secondly, I say then the conqueror §
I 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 goverpors 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 unjustice 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 impowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction,
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but they willingly permit the confusion of war to sweep all together : but yet this alters not the right ; for the conquerors 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,
f. 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 themIelves 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 fight will seem a strange doctrine, it being to 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 poffeffion. But when we consider, that the practice of the strong and powerful, how universal foever it may be, is feldom 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 sword. . ,
$. 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 ; of having peaceably got in, by force keeps me out, does in effect the same thing ; suppofing we are in such a state, that we have no com. mon judge on earth, whom I may appeal to,
I 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 fate 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 mani, 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 dans gerous to his being.