On Conquest
John Locke
[Reprinted from The Second Treatise of Civil
Government, 1690]
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.
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