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chapter 20: On Conquest and Patrimonial Kingdoms 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael [1724]

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Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).

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chapter 20

On Conquest and Patrimonial Kingdoms1

[Pufendorf had argued that, while all legitimate governments must be derived from the consent of subjects, this consent is not always elicited in the same manner. For subjects are sometimes forced to consent to a government that is imposed upon them by a conqueror following a war. The subjects of an occupying power are justly required to consent to such a government which has, after all, spared the lives of the conquered people. Moreover, the subjugated people must have understood that in making war they had risked their lives and fortunes at the gaming table of Mars. And they had therefore consented tacitly to whatever conditions might issue from the war. Carmichael offers the following observations on this argument:]

Many opinions are current on this question of the acquisition of power or government. They need to be carefully scrutinized. It has been established above2 that whatever is owed by the vanquished even to a just victor, beyond the fact that he had given cause for war, is owed either as compensation or as a guarantee for the future or as punishment. To begin with the last, only those who actually do harm are liable to punishment; for Grotius has rightly noted that the civil association between ruler and citizens does not entail that innocent citizens may be punished in the human court for the crimes of the ruler (II.XXI.17; see also III.XI.2). But in the case of an unjust war, its being waged by a state usually means that it is waged by the sovereign and the soldiers under his command. The vast majority of citizens have made no contribution at all, whether of wealth or counsel, and are therefore totally exempt from punishment, however wickedly the war was waged. The first justification, therefore, which Pufendorf gives for the acquisition of power by force, that if the victor had wished to make strict use of the rights of war, he could have taken the lives of the vanquished, is applicable only to a small portion of the conquered state—on the assumption that one understands by the strict rights of war not what is done by inhuman and unjust victors, but what may be done rightfully. For once enemies are defeated, the only justification for taking away their lives is as punishment, in the same way that in the state of nature only physical punishments are applicable. I omit to inquire whether the common soldiers deserve any mitigation of punishment on the ground of justice, because they were lured or even pressed into war by the authority of the ruler, and because specious pretexts often cloak unjust wars. I also ignore the question whether they have a worthy conception of civil government who think that men who have deserved extreme penalties should be compelled to enter military service as their punishment.

On compensation for loss, the following seems certain. (1) It rarely, if ever, happens that the loss which the inhabitants of a well-cultivated territory wrongly inflict on another people or prince equals the value of any distinct part of the region which the wrongdoers possess. It also rarely happens that the aggressor is not both willing and able, when it has to make the choice, to compensate for the damage otherwise than by ceding any part of its territory. In which case the injured party has no excuse for holding this territory, much less for suppressing the liberty of innocent citizens.

(. Whatever is due to the victor as compensation for loss, need not (it seems) be paid by innocent citizens in a way that would also deprive them of the continued use and enjoyment of the civil government for whose sake they are assumed to have incurred the obligation. For the only justification of the obligation by which citizens need to make restitution for public wrongdoing seems to be the same as that which in private law underlies noxal actions and the action de pauperie.3 Thus it would be considered fair that those who have taken certain means to procure profit or pleasure for themselves as a result of which others have suffered loss through no fault of their own should either make good the loss or cede to the injured party the piece of their property which caused the loss to the injured party. This rule has to be modified in the light of a stricter equity, as I have explained above,4 but as it stands, a prince or people which has suffered loss from the civil government of another people cannot claim the power to govern if it obtains any other compensation; and if it does succeed in taking power, it cannot claim any other compensation from the innocent citizens.

(. It is consistent with this, that, however just a war may be, the only thing that the victor can rightly claim from the innocent citizens of a conquered people is government of the land (imperium soli), if, as rarely happens, he cannot get any other compensation for his loss.5 This does not prevent innocent citizens from maintaining all their rights in other respects, whether they prefer to remain in the territory and live as subjects of the government established there, or to take their possessions and go elsewhere.

But if the victor has himself taken compensation in moveables for the loss he suffered beyond what was due to him at the beginning, or if he is offered such compensation in peace negotiations, it follows from what we have said that the seizure he has made by means of war is not sufficient ground for asserting either dominion or government over the territory itself or any part of it. We did indeed say above (pp. 70–71) that any enemy property which we have seized may become ours in compensation for what is owed to us; but we also stressed that one must not infringe on the rights of innocent people. Now it is obviously in the interest of each state and of each individual citizen (most of whom are rightly presumed to be innocent in such a case) that the government of its territory be kept intact. Compensation for loss, therefore, or reparation for any similar debt, should be made from moveables, at least where the government is not patrimonial.

Finally, the guarantee: it is clear that it is usually possible for the injured party to obtain a guarantee for the future in the same way as he may obtain satisfaction for loss inflicted up to that point. [And he may obtain such guarantees and satisfactions] even if he is not permitted to take over the government either of the people who were the source of the injury or even of the territory they inhabit.

There is no objection to this in the second justification which our author gives of seizure of government by force, viz., that in going to war with one whom he has previously harmed and to whom he has refused to give reasonable satisfaction, he puts all his fortunes on the gaming table of Mars, etc. This may perhaps be plausibly urged against one who takes the initiative in invading the rights of some weaker party without any pretext of right, relying solely on the force of arms, but it would seem difficult to accept against one who professes (with truth) that he thinks his own cause just and that he is waging war not simply because he is confident in his power to do so, but with the intention of protecting and advancing his own rights. Further, no one would be willing to accept the condition our author imposes unless the enemy did so too. And our author himself admits that such acceptance cannot be presumed on the part of one who goes to war for a just and necessary cause after gentler means of protecting his rights have been tried in vain. Compare Of the Law of Nature and Nations, VIII.VIII.1, where our author in this case goes to the opposite extreme, as I point out at p. 209, below.

Clearly therefore it rarely happens that the victor even in the most righteous war is justified in claiming for himself the government of the territory of a conquered people, far less absolute dominion over it. Nor is he justified in preventing them from keeping their property intact after their country has been conquered, whether they prefer to stay or to emigrate. It follows that he is not justified in using the threat of extreme measures (as our author would have it, ibid., sec. 3) in compelling them to consent to his government.6 See above all, Locke’s Second Treatise of Government, chapter 16, which we cited above.7

If the victor has extorted such consent by unjustified force (too often employed even in wars begun for just causes), it is not completely void, as we have indicated above (pp. 85–86). In fact, any citizen may validly bind himself, by a promise extorted by extreme violence, not to use force against an invader in defense of the legitimate ruler, even though the right of the ruler, as well as of the rest of the citizens, remains valid in other respects. But in no case is a citizen justified in obeying an invader against a legitimate ruler, since one must not serve even a legitimate prince in an unjust cause. The famous English law of Henry VII offers only external immunity.8

Further, since the very idea of a promise made to an unjust aggressor is offensive, it needs the clearest evidence to validate its existence, and is not to be extended at all. Mere intermission of resistance should not be taken as an indication of binding consent, among citizens reduced to such a condition that they cannot even open their mouths against him without the most pressing danger. Yet an intermission of resistance does have the consequence that arms should not to be taken up again lightly, without ascertaining the will of the people or of their rightful ruler, and without a new declaration of hostilities. And when active hostilities cease, although the right of the former ruler and of the people itself is maintained against the invader, yet individual citizens are obliged, for the public interest and because of the presumed will of the rightful ruler himself and of the whole state, to obey for the time being the present possessor of government in matters which affect the daily peace, and do not pertain to the controverted right of ruling.

On the other hand, it also sometimes happens that an unjust invader administers a territory with such fairness that all the citizens cordially wish him for their ruler, and constantly declare their genuine consent to his rule by repeated signs, quite spontaneously. In this case, the fault of the acquisition is purged with the proviso that it does not impede the right of the former ruler, as if it had been abolished by death or by express or tacit abdication.

Now according to the author’s doctrine in the final paragraph of the last chapter,9 the holding of a kingdom in patrimony belongs especially to those who have acquired a kingdom by arms and have made a people for themselves. One may therefore infer from what I have said, that patrimonial kingdoms scarcely ever have a just beginning; especially since what is held by occupation in war (if by chance the cause of acquisition is just, as rarely happens) should be considered most often as having been acquired as the patrimony of the victorious people rather than of the prince. The reason for this is not merely the reason that Grotius rejects (I.III.12.3), that these acquisitions have been achieved by the blood and sweat of the citizens, but above all because they have been made to satisfy some other right which belongs to the people more than to the prince. I admit that this reason does not always hold, nor the other rejected by Grotius; yet they are rarely both wanting, unless the conqueror already held some other kingdom in his patrimony.

One must not deny that it may happen, though rarely, that a patrimonial kingdom is established by other than violent means and by some other pretext than that of satisfying some other right. A man may, for instance, with the help of servants or other hired men, occupy some vacant territory, sufficient for the settlement of a normal society; he may accept an appropriate number of settlers, and impose upon them, among other terms, the condition of civil subjection; or he may offer other inducements to invite men to become citizens in a society dependent on himself; or finally, a king may succeed to the immoveable property of individual citizens (which scarcely ever happens). It is plain that, if the king is granted the right in such cases not only of alienation but also of division, this very fact implies that there is not that firm union of the citizens with each other, independent of the actual ruler, which we showed above (pp. 147 ff.) is requisite to a normal and stable society, and which, as we noted there, is normally formed by a prior agreement but can also be established by one single pact entered into with a supreme ruler. Though we admit that when the first foundations of a state are laid by means of one single pact entered into with a king, the citizens are usually to be considered not as being united with each other by its means, but rather as subject to the supreme ruler in such a way that their future union depends on his discretion, if no further bond occurs subsequently. By this means only an imperfect state is constituted; and almost all the patrimonial kingdoms that exist are imperfect states. [II.10.2.i]

We can understand from pp. 151–53 what reason there might be, as is commonly claimed, for this distinction [between patrimonial kingdoms, which are supposed to be divisible and alienable, and kingdoms instituted by the will of the people, which cannot be divided in these ways]. For when a king is understood to have once acquired dominion over a whole region, and once his subjects confer upon him whatever right they have over its individual parts, a patrimonial kingdom is assumed to have been established. This is understood to be achieved by one agreement, by which the individual citizens who settle in that region subject themselves and their successors in the beneficial ownership or other use of that land to the civil power of the said king and of his rightful successors, who are the supreme lords of that land; in return they claim the protection of the government and use of their acquired rights in that land.

By contrast, when parts of a region are owned by individuals, and the common power over that region is transferred to a king by these owners, it is best to regard this as the establishment of a nonpatrimonial kingdom. This is often done by means of a second agreement, i.e., a second agreement by the original citizens who are the owners of the individual estates and who had been previously united by the first agreement into one perpetual association. In conferring the government on this man they are understood to be moved by consideration of the person himself, hence we should not regard them as granting the right of transmitting it to his descendants, unless they have expressly said so; in which case it is also their right to define the order of succession. The facts themselves show that this manner of constituting a state and a civil power is particularly consonant with its nature and end. We have discussed above10 by what right, or by what wrong, one man can acquire that universal ownership or dominion over a region which is supposed to be the foundation of a patrimonial government. Meanwhile we note that even assuming such ownership, he owns only the territory in his patrimony and the right of collecting the ample revenues which are consequent on ownership; this does not include civil government over the people. His right is not to be confused with civil power, however much it may be combined with it. For the former looks to the particular advantage of the ruler, the latter, to the advantage of all and everyone, since the rights of individuals, though perhaps narrower here than under certain other forms of government, are yet equally valid, and equally to be scrupulously observed by the ruler. Indeed no one is a suitable object of civil government except so far as he has certain rights which are valid against all men. So far does civil government, however absolute, differ from despotic government. [II.9.7.i]

If the kings under discussion here hold their kingdom only to the end of life, and may not transmit it to their [descendants], they are to that extent comparable to usufructuaries. But if they can transmit it to their descendants, in a fixed order, they have similar rights to feudataries, because they cannot alienate the kingdom at their discretion, nor change the order of succession, nor burden the succession to the kingship as such with their own private debts. For as in the former case the order of succession has been set by a superior, so in the latter case it has been set by the people. But this analogy should not to be extended further, as if the supremacy and dignity of the royal power were diminished by not being contained in the Patrimony. [II.9.7.iii]

When free consent is spoken of [in the election of a monarch], a free consent which is given by a people in process of formation or already formed, it is opposed not only to consent extorted by force, but also to the kind of consent which is elicited from individuals with respect to government over a territory which has been previously acquired by a king, where people have established or are beginning to establish their homes, and which he has given them to use precisely for that purpose or for the enjoyment of any similar advantage he offers to induce them to enter a civil association depending on him. [II.10.3.i]

By a people which has been formed one must understand a people which has become a complete state by the erection of a civil government. But a people in process of formation is one which has coalesced into some rudimentary form of state by means of the first pact alone; this is also the condition into which a monarchical state relapses (as the author says in the following paragraph) when, after the death of the former king, there is occasion for a new election. There are two kinds of election. An election held by a formed people is any election held by the combined citizens even if they are only united by the first pact. But an election held by a people in process of formation is one which is included in the first pact, as we have said sometimes happens (pp. 147–53). [II.10.3.ii]

An election may be held, though it is not a common event, under an absolute monarchy, either in the particular kind of monarchy called elective, in the event of the death of the reigning monarch, or in a hereditary monarchy, in the event of the extinction of the ruling family. An election may also be held, though this also rarely happens, in a completely aristocratic or democratic state, in changing by election to a monarchy without any intermission of the actual government; to say nothing of the election which takes place by means of the first agreement in a state not yet fully formed, in which the actual government has not yet been established. [II.10.4.i]

Our author explains at length the form of the state during an interregnum and the bonds by which it is maintained in one of his Select Dissertations entitled “On Interregna.”11 It is to no avail that the celebrated Titius dissents here, contending that the union of the citizens in an interregnum, when no previous arrangement has been made about who will administer the country on a vacancy of the throne, does not rest on a previous agreement but on a new agreement expressly or tacitly made at the very time of the interregnum.12 For if this is admitted, it follows, contrary to what that distinguished scholar wishes to maintain, that the state dissolves into a disunited multitude at the very moment when the previous king dies. Nor is this consequence preempted by their continued living together, for such living does not imply a moral union, however much it may afford the opportunity to restore such a union. Therefore it would be more correct to agree with Pufendorf that civil union is preserved in an interregnum by the force of the original agreement, by which the union had been established in the beginning. And this union includes not only a simple obligation between citizens, such as Titius wants, but also a bond of government. For it is certain that during the period when there is free power to determine a government, for that time preeminently government itself still exists. Thus Pufendorf rightly declared13 that interregna have the character of a temporary democracy, which the people, at its discretion, can either establish forever or change into any other form of government it likes. Nor does it matter that nothing had actually been settled previously about the administration of the government after the death of the king. For in this case, the state is presumed to will that the magistrates who are at the time in charge should continue in the exercise of their functions, simply for the sake of preserving peace; and that the most eminent among them should at the first opportunity call the citizens together to take counsel for their country. [II.10.4.ii]

It is certain that in this case [where the succession in a monarchy instituted by the people is in dispute] no more suitable arbitrator can be employed than the people. For since the people is regarded as morally the same as it had been in any previous century, it knows well how to make its mind known even if previously, it is supposed, it had not declared it with sufficient clarity. A declaration of this kind, however, is no more a judicial opinion (as the author cautions in the final paragraph of this volume of the Law of Nature and Nations)14 than an interpretation made by a donor of his own obscure and ambiguous words.

Even though there may be no dispute over the natural order of succession, it may be clear that the person favored by the accident of birth holds opinions which will inevitably lead him to govern in such a way that he endangers the public safety. If such a course is actually pursued and obstinately maintained, the people may (as shown above)15 rightly remove the king from power, however justified his accession may have been. The people is not acting as interpreter of law, but is taking necessary measures for its own preservation. By the same right, then, when a people has obvious indications beforehand that such an administration is likely, it may exclude from the succession the heir designated by the chance of birth. Among such signs none is more obvious than the profession of any religion whose teachings tend to undermine the sacred and civil rights of citizens and to eradicate any consciousness of obligation among them.

Furthermore, when manifest abuse of power gives cause for removing someone from the throne, or when a deliberate fault such as we have described above provokes grounds for excluding him from the succession, such abuse equally excludes from the throne at the same time all his posterity, or at least those born after he has given such cause. For both have the same force as abdication (renunciatio), since it makes no difference whether one simply refuses to rule or whether one refuses to rule in such a way as to achieve the end of government. The right of a successor in a nonpatrimonial kingdom does not depend simply on the designation of an heir by his predecessor at his own discretion, who may institute anyone as heir or even disinherit someone with the effect of barring him from the succession, against the people’s will. Rather, the right of succession, so far as it is valid against the people itself, is transmitted from the monarch who was first entrusted with the kingship to his distant descendants only through persons intermediate in a direct line. Nevertheless, any possessor of a kingdom or, in a certain case, his lineal successor, can remit his right to the people if they so will, and renounce it in their favor, and this enables them rightly to divert the succession from all his descendants or at least from those born after the abdication (Grotius agrees with this at II.VII.26, at the end). This will involve no loss to collateral heirs. For the right of succession is transmitted to them not through the abdicating king but through his ancestors in the direct line. Grotius and others want to apply this principle also in favor of descendants of the abdicating king who were born before the abdication.16 But to tell the truth, no argument convinces us that the right is acquired by the child by mere birth, without any subsequent act, against the unanimous will of those who by their consent could have taken the right away from him before he was born.

Whatever the position of children born before the abdication, it is obvious from what we have said that a deliberate incapacity of the sort we have described above also bars the transmission of the right to the descendants. It follows that, in any kingdom where the profession of the reformed religion is established by law, and where the people has striven to secure a perfect right to the perpetual stability of those laws, the profession of the Pontifical religion has the effect that not only the individuals who make such a profession, in whatever order they are designated successors to the kingship by the lot of birth, but also their children, or at least those born after the contraction of that incapacity, and their descendants forever, can rightly be prohibited from the succession by the people, in their zealous (and reasonable) care for their religion and their liberty. In this case the government is rightly conferred on the next collateral in line, to be transmitted also to his descendants.

It was therefore a salutary counsel, and no less consistent with the principles of universal law, by which the British nations, after excluding all who had surrendered themselves to the Roman Pontificate, conferred the succession of government among themselves on that most illustrious family, pointed out by the finger of Heaven to save them from destruction, a family which has given us the most Serene King George, today happily ruling over us, and which will continue to afford a line of pious Kings, who will endure, if Britain’s prayers prevail, as long as the sun and the moon. [II.10.12.i]

[1.] From the notes to bk. II, ch. 10, “On the Ways of Acquiring Power, Particularly Monarchical.”

[2.] See above, pp. 139–42.

[3.] Noxal actions and actions de pauperie are actions in Roman law for compensation for damage committed by slaves and animals, respectively; essentially, the owner of the slave or animal either made good the loss or surrendered him or his services to the injured party.

[4.] Noxal damage and pauperies had been explained by Carmichael at I.6.11.ii and at I.6.12.i and ii. There he recalled “the civil law of the Romans (cf. Justinian, Institutes, IV.8 and 9), though many scholars wonder to what extent these judgments are also valid in natural law. As far as concerns a servant by whom a loss has been caused, his master seems to be wholly obligated either to make up the loss or to surrender the servant, unless in either case the master himself sustains a loss in that servant; in this case, I would think that the loss should be prorated as is done among the creditors of a debtor bound to service.” [I.6.11.ii]“Not all the revenue which comes to a master from his animal is to be regarded as profit; but only that which exceeds the price given for him, together with the expenses laid out on keeping him. Hence I would think that this judgment should have the same limits as the previous one. For the Hebrew laws on this question, see Exodus 21.28 and 35.” [I.6.12.i]“This obligation ceases if the injured party is at fault as regards the loss; as for instance if he provoked the animal.” [I.6.12.ii]

[5.] On imperium soli, see above, pp. 150–53.

[6.] Carmichael’s arguments against Grotius and Pufendorf that conquest and enforced consent never provide justifiable grounds for allegiance were challenged by Barbeyrac, who insisted that “we must here distinguish between what the Rigours of the Law demand, and what the Rules of Humanity and Equity require, … by this means, all the objections vanish, which Mr. Carmichael brings against our Author. … For with regard to the external Effect, the Injustice of war, on the Side of the Conqueror, no ways hinders the vanquish’d from being oblig’d to keep the Agreement, tho’ forc’d, by which he is brought under subjection. This is what the peace of Mankind requires. …” (Pufendorf, Of the Law of Nature and Nations, VII.VII. 3, n. 5, p. 506). See also Barbeyrac’s notes on Grotius, Rights of War and Peace, III.VIII.1, p. 608.

[7.] Hutcheson concurred with Carmichael and Locke on the subject of the “much celebrated right of conquest”: “upon this subject, see Locke on Government; whose reasonings are well abridged in Mr. Carmichael’s notes on Pufendorf’s smaller book” (A Short Introduction to Moral Philosophy, III.7, pp. 309–10: this note does not appear in Philosophia Moralis [1745]).

[8.] 11 Henry VII (1495), c. 1, which provided immunity for activities in support of the King “for the time being,” and thus offered amnesty to former opponents of Henry prior to his coming to the throne (Elton, The Tudor Constitution, pp. 2, 4–5). According to Elton, Francis Bacon had started a tradition of mistakenly reading into this law a distinction between a de facto and a de jure king.

[9.] Pufendorf, On the Duty of Man and Citizen, II.9.7, p. 147.

[10.] See above, pp. 180 ff.

[11.] Pufendorf, “De interregnis.”

[12.] Titius, Observationes, no. 609.

[13.] Pufendorf, “De interregnis,” sec. 7, pp. 274–77.

[14.] Of the Law of Nature and Nations, VII.VII.15, pp. 715–16.

[15.] See above, pp. 164–69.

[16.] Rights of War and Peace, II.VII.28, pp. 243–44.