The Online Library of Liberty

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• Introduction
• Note On the Text
• Acknowledgments
• Volume 1: The Principles of Natural Law
• Part I: General Principles of Right.
• Chapter I: Of the Nature of Man Considered With Regard to Right: of the Understanding, and Whatever Is Relative to This Faculty.
• Chapter II: Continuation of the Principles Relative to the Nature of Man. of Will and Liberty.
• Chapter III: That Man Thus Constituted, Is a Creature Capable of Moral Direction, and Accountable For His Actions.
• Chapter IV: Further Inquiry Into What Relates to Human Nature, By Considering the Different States of Man.
• Chapter V: That Man Ought to Square His Conduct By Rule; the Method of Finding Out This Rule; and the Foundations of Right In General.
• Chapter VI: General Rules of Conduct Prescribed By Reason. of the Nature and First Foundations of Obligation.
• Chapter VII: Of Right Considered As a Faculty, and of the Obligation Thereto Corresponding.
• Chapter Viii *: of Law In General.
• Chapter IX: Of the Foundation of Sovereignty, Or the Right of Commanding.
• Chapter X: Of the End of Laws; of Their Characters, Differences, &c.
• Chapter XI: Of the Morality of Human Actions. *
• Part II: Of the Law of Nature.
• Chapter I: In What the Law of Nature Consists, and That There Is Such a Thing. First Considerations Drawn From the Existence of God and His Authority Over Us.
• Chapter II: That God, In Consequence of His Authority Over Us, Has Actually Thought Proper to Prescribe to Us Laws Or Rules of Conduct.
• Chapter III: Of the Means By Which We Discern What Is Just and Unjust, Or What Is Dictated By Natural Law; Namely, 1. Moral Instinct, and 2. Reason.
• Chapter IV: Of the Principles From Whence Reason May Deduce the Law of Nature. *
• Chapter V: That Natural Laws Have Been Sufficiently Notified; of Their Proper Characteristics, the Obligation They Produce, &c.
• Chapter VI: Of the Law of Nations.
• Chapter VII: Whether There Is Any Morality of Actions, Any Obligation Or Duty, Antecedent to the Laws of Nature, and Independent of the Idea of a Legislator? 1
• Chapter VIII: Consequences of the Preceding Chapter: Reflections On the Distinctions of Just, Honest, and Useful.
• Chapter IX: Of the Application of Natural Laws to Human Actions; and First of Conscience. †
• Chapter X: Of the Merit and Demerit of Human Actions; and of Their Imputation Relative to the Laws of Nature. *
• Chapter XI: Application of Those Principles to Different Species of Actions, In Order to Judge In What Manner They Ought to Be Imputed.
• Chapter XII: Of the Authority and Sanction of Natural Laws † and 1. of the Good Or Evil That Naturally and Generally Follows From Virtue Or Vice.
• Chapter XIII: Proofs of the Immortality of the Soul. That There Is a Sanction, Properly So Called, In Respect to Natural Law. 1
• Chapter XIV: That the Proofs We Have Alledged Have Such a Probability and Fitness, As Renders Them Sufficient to Fix Our Belief, and to Determine Our Conduct.
• Volume 2: The Principles of Politic Law
• Part I: Which Treats of the Origin and Nature of Civil Society, of Sovereignty In General, of Its Peculiar Characteristic, Limitations, and Essential Parts.
• Chapter I: Containing a Few General and Preliminary Reflections, Which Serve As an Introduction to This and the Following Parts.
• Chaper II: Of the Real Origin of Civil Societies.
• Chapter III: Of the Right of Congruity Or Fitness With Regard to the Institution of Civil Society, and the Necessity of a Supreme Authority: of Civil Liberty; That It Is Far Preferable 1 to Natural Liberty, and That the State Is of All Human Conditions
• Chapter IV: Of the Essential Constitution of States, and of the Manner In Which They Are Formed.
• Chapter V: Of the Sovereign, Sovereignty, and the Subjects.
• Chapter VI: Of the Immediate Source, and Foundation of Sovereignty.
• Chapter VII: Of the Essential Characters of Sovereignty, Its Modifications, Extent, and Limits.
• Chapter VIII: Of the Parts of Sovereignty, Or of the Different Essential Rights Which It Includes.
• Part II: In Which Are Explained the Different Forms of Government, the Ways of Acquiring Or Losing Sovereignty, and the Reciprocal Duties of Sovereigns and Subjects.
• Chapter I: Of the Various Forms of Government.
• Chapter II: An Essay On This Question, Which Is the Best Form of Government?
• Chapter III: Of the Different Ways of Acquiring Sovereignty.
• Chapter IV: Of the Different Ways of Losing Sovereignty.
• Chapter V: Of the Duties of Subjects In General.
• Chapter VI: Of the Inviolable Rights of Sovereignty, of the Deposing of Sovereigns, of the Abuse of the Supreme Power, and of Tyranny.
• Chapter VIII: Of the Duty 1 of Sovereigns.
• Part III: A More Particular Examination of the Essential Parts of Sovereignty, Or of the Different Rights of the Sovereign, With Respect to the Internal Administration of the State, Such As the Legislative Power, the Supreme Power In Matters of Religion,
• Chapter I: Of the Legislative Power, and the Civil Laws Which Arise From It.
• Chapter II: Of the Right of Judging the Doctrines Taught In the State: of the Care Which the Sovereign Ought to Take to Form the Manners of His Subjects.
• Chapter III: Of the Power of the Sovereign In Matters of Religion.
• Chapter IV: Of the Power of the Sovereign Over the Lives and Fortunes of His Subjects In Criminal Cases.
• Chapter V: Of the Power of Sovereigns Over the Bona Reipublicae, 1 Or the Goods Contained In the Commonwealth.
• Part IV: In Which Are Considered the Different Rights of Sovereignty With Respect to Foreign States; the Right of War, and Every Thing Relating to It; Public Treaties, and the Right of Ambassadors.
• Chapter I: Of War In General, and First of the Right of the Sovereign, In This Respect, Over His Subjects.
• Chapter II: Of the Causes of War.
• Chapter III: Of the Different Kinds of War.
• Chapter IV: Of Those Things Which Ought to Precede War.
• Chapter V: General Rules to Know What Is Allowable In War.
• Chapter VI: Of the Rights Which War Gives Over the Persons of the Enemy, and of Their Extent and Bounds.
• Chapter VII: Of the Rights of War Over the Goods of an Enemy.
• Chapter VIII: Of the Right of Sovereignty Acquired Over the Conquered.
• Chapter IX: Of Public Treaties In General.
• Chapter X: Of Compacts Made With an Enemy.
• Chapter XI: Of Compacts With an Enemy, Which Do Not Put an End to the War.
• Chapter XII: Of Compacts Made, During the War, By Subordinate Powers, As Generals of Armies, Or Other Commanders.
• Chapter XIII: Of Compacts Made With an Enemy By Private Persons.
• Chapter XIV: Of Public Compacts Which Put an End to War.
• Chapter XV: Of the Right of Ambassadors.

CHAPTER VIII

Of the right of sovereignty acquired over the conquered.

I. Besides the effects of war, hitherto mentioned, there remains one more, the most important of all, and which we shall here consider; I mean the right of sovereignty acquired over the conquered. We have already remarked, when explaining the different ways of obtaining the supreme power, that in general it may be acquired either in a violent manner, and by the right of conquest, &c.

II. We must however observe, that war or conquest, considered in itself, is not properly the cause of this acquisition; that is, it is not the immediate origin of sovereignty. For the supreme power is founded on the tacit or express consent of the peo-<306>ple, without which the state of war still subsists; for we cannot conceive how there can be an obligation to obey a person, to whom we have promised no subjection. War then is, properly speaking, no more than the occasion of obtaining the sovereignty; as the conquered chuse rather to submit to the victor, than to expose themselves to total destruction.1

III. Besides, the acquisition of sovereignty by the right of conquest cannot, strictly speaking, pass for lawful, unless the war be just in itself, and the end proposed authorises the conqueror to carry things to such extremity, as to acquire the supreme power over the vanquished: that is to say, either our enemy must have no other means of paying what he owes us, and of indemnifying us for the damages he has committed; or our own safety must absolutely oblige us to make him dependent on us. In such circumstances, it is certain that the resistance of a vanquished enemy, authorises us to push the acts of hostility against him so far, as to reduce him entirely under our power; and we may, without injustice, take advantage of the superiority of our arms, to extort from him the consent which he ought to give us of his own accord.2

IV. These are the true principles on which sovereignty, by the right of conquest, is grounded. Hence we may conclude, that if, upon this foundation, we were to judge of the different acquisitions of this nature, few of them would be found<307> well established; for it rarely happens, that the vanquished are reduced to such extremity, as not to be able to satisfy the just pretensions of the conqueror, otherwise than by submitting themselves to his dominion.

V. Let us however observe, that the interest and tranquillity of nations require, that we should moderate the rigour of the principles above established. If he who has constrained another, by the superiority of his arms, to submit to his dominion, had undertaken a war manifestly unjust, or if the pretext, on which it is founded, be visibly frivolous in the judgment of every reasonable person, I freely confess that a sovereignty, acquired in such circumstances, would be unjust; and I see no reason, why the vanquished people should be more obliged to keep such a treaty, than a man, who had fallen into the hands of robbers, would be under an obligation to pay, at their demand, the money he had promised them for the ransom of his life and liberty.3

VI. But if the conqueror had undertaken a war for some specious reason, though perhaps at the bottom not strictly just, the common interest of mankind requires, that we should observe the engagements we have entered into with him, though extorted by a terror in itself unjust; so long, at least, as no new reason supervenes, which may lawfully exempt us from keeping our promise. For as the law of nature directs that societies, as well as individuals, should labour for their preservation, it obliges us,<308> for this reason, not indeed to consider the acts of hostility committed by an unjust conqueror as properly just, but to look upon the engagement of an express, or tacit treaty, as nevertheless valid. So that the vanquished cannot be released from observing it, under the pretext of its being caused by an unjust fear, as he might otherwise do, had he no regard to the advantages accruing from it to mankind.4

VII. These considerations will have still a greater weight, if we suppose that the conqueror, or his posterity, peaceably enjoy the sovereignty which he has acquired by right of conquest; and besides, that he govern the vanquished like a humane and generous prince. In such circumstances, a long possession, accompanied with an equitable government, may legitimate a conquest, in its beginning and principle the most unjust.5

VIII. There are modern civilians, who explain the thing somewhat differently. These maintain, that in a just war the victor acquires a full right of sovereignty over the vanquished, by the single title of conquest, independently of any convention; and even though the victor has otherwise obtained all the satisfaction, and indemnification, he could require.6

IX. The principal argument these writers make use of, is, that otherwise the conqueror could not be certain of the peaceable possession of what he has taken, or forced the conquered to give him, for his<309> just pretensions; since they might retake it from him, by the same right of war.

X. But this reason proves only that the conqueror, who has taken possession of the enemy’s country, may command in it while he holds it, and not resign it, till he has good security that he shall obtain or possess, without hazard, what is necessary for the satisfaction and indemnity, which he has a right to exact by force. But the end of a just war does not always demand, that the conqueror should acquire an absolute and perpetual right of sovereignty over the conquered. It is only a favourable occasion of obtaining it; and for that purpose, there must always be an express or tacit consent of the vanquished. Otherwise, the state of war still subsisting, the sovereignty of the conqueror has no other title than that of force, and lasts no longer than the vanquished are unable to throw off the yoke.

XI. All that can be said, is, that the neutral powers, purely because they are such, may, and ought to look upon the conqueror as the lawful possessor of the sovereignty, even though they should believe the war unjust on his side.

XII. The sovereignty thus acquired by the right of war, is generally of the absolute kind. But sometimes the vanquished enter into certain conditions with the conqueror, which limit, in some measure, the power he acquires over them. Be this as it may, it is certain that no conquest ever<310> authorises a prince to govern a people tyrannically; since, as we have before shewn, the most absolute sovereignty gives no right to oppress those who have surrendered; for even the very intention of government, and the laws of nature, equally conspire to lay the conqueror under an obligation, of governing those whom he has subdued, with moderation and equity.

XIII. There are, therefore, several precautions to be used in the exercise of the sovereignty acquired over the vanquished; such, for instance, was that prudent moderation of the ancient Romans, who confounded, in some measure, the vanquished with the victors, by hastening to incorporate them with themselves, and to make them sharers of their liberty and advantages. A piece of policy doubly salutary; which, at the same time that it rendered the condition of the vanquished more agreeable, considerably strengthened the power and empire of the Romans. “What would our empire now have been,” says Seneca, “if the vanquished had not been intermixed with the victors, by the effect of a sound policy?” “Romulus, our founder,” says Claudius in Tacitus, “was very wise with respect to most of the people he subdued, by making those, who were his enemies, the same day citizens.”7

XIV. Another moderation in victory, consists in leaving to the conquered, either kings or people, the sovereignty which they enjoyed, and not to change the form of their government. No better method can be taken to secure a conquest: and of this we have several examples in<311> ancient history, especially in that of the Romans.

XV. But if the conqueror cannot, without danger to himself, grant all these advantages to the conquered; yet things may be so moderated, that some part of the sovereignty shall be left to them, or to their kings. Even when we strip the vanquished intirely of their independency, we may still leave them their own laws, customs, and magistrates, in regard to their private and public affairs, of small importance.

XVI. We must not, above all things, deprive the vanquished of the exercise of their religion, unless they happen to be convinced of the truth of that which the conqueror professes. This complaisance is not only of itself very agreeable to the vanquished, but the conqueror is absolutely obliged to it; and he cannot, without tyranny, oppress them in this article. Not that he ought not to try to bring the vanquished to the true religion; but he should only use such means, as are proportioned to the nature of the thing, and to the end he has in view; and such as have in themselves nothing violent, or contrary to humanity.8

XVII. Let us observe, lastly, that not only humanity, but prudence also, and even the interest of the victor, require that what we have been saying, with respect to a vanquished people, should be strictly practised. It is an important maxim in politics, that it is more difficult to keep, than to conquer pro-<312>vinces. Conquests demand no more than force, but justice must preserve them. These are the principal things to be observed, in respect to the different effects of war, and to the most essential questions relative to that subject. But as we have already had occasion to make mention of the article of neutrality, it will not be improper to say something more particular about it.

Of Neutrality.9

I. There is a general, and a particular neutrality. The general is, when without being allied to either of the two enemies at war, we are disposed to render to each the good offices which every nation is naturally obliged to perform to other states.

II. The particular neutrality is, when we are particularly engaged to be neuter by some compact, either tacit or express.

III. The latter species of neutrality is either full and intire, when we behave alike towards both parties; or limited, as when we favour one side more than the other.

IV. We cannot lawfully constrain any person to enter into a particular neutrality; because every one is at liberty to make, or not make, particular treaties, or alliances; or at least, they are not bound to do it but by virtue of an imperfect obligation. But he, who has undertaken a just war, may oblige<313> other nations to observe an exact and general neutrality; that is to say, not to favour his enemy more than himself.

V. We shall give here an abstract, as it were, of the duties of neutral nations. They are obliged equally to put in practice, towards both parties at war, the laws of nature, as well absolute as conditional, whether these impose a perfect, or only an imperfect obligation.

VI. If they do the one any office of humanity, they ought not to refuse the like to the other, unless there be some manifest reason which engages them to do something in favour of the one, which the other had otherwise no right to demand.

VII. But they are not obliged to do offices of humanity to one party, when they expose themselves to great danger, by refusing them to the other, who has as good a right to demand them.

VIII. They ought not to furnish either party with things which serve to exercise acts of hostility, unless they are authorised to do it by some particular engagement; and in regard to those which are of no use in war, if they supply one side with them, they must also the other.

IX. They ought to use all their endeavours to bring matters to an accommodation, that the injured party may obtain satisfaction, and the war be brought to a speedy conclusion.<314>

X. But if they be under any particular engagement, they should punctually fulfill it.

XI. On the other side, those who are at war must exactly observe, towards neutral nations, the laws of sociability, and not exercise any act of hostility against them, nor suffer their country to be plundered.

XII. They may however, in case of necessity, take possession of a place situated in a neutral country; provided, that as soon as the danger is over, they restore it to the right owner, and make him satisfaction for the damages he has received.

[1. ]This paragraph is based on DGP III.8 §1 note 1.

[2. ]See DNG VII.7 §3. See also note 4 to the same.

[3. ]Based on DNG VII.7 §4.

[4. ]Based on DGP III.19 §11 note 1. See also DNG VII.7 §3 note 4.

[5. ]Based on DGP II.4 §8.

[6. ]This and the four following paragraphs are from DGP III.8 §1 note 1.

[7. ]See DGP III.15 §3. For the following two paragraphs, see §4 and §5 to the same chapter respectively.

[8. ]These arguments are from DGP III.15 §11 and note 3. Burlamaqui’s statement is bolder than Grotius’s: the latter merely claims noninterference in religious affairs is “by no means prejudicial to the conqueror.” Burlamaqui could be following Barbeyrac, who repeatedly insists that religious toleration is a duty incumbent on every state; see, for example, DNG VII.4 §11 note 2.

[9. ]The whole discussion of neutrality is from Barbeyrac in DNG 1732 VIII.6 §7 note 2.