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CHAPTER XIII: Of Acquisitions by War, and particularly of Conquests. - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) [1797]

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The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).

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CHAPTER XIII

Of Acquisitions by War, and particularly of Conquests.

§193. How war is a method of acquisition.If it be lawful to carry off things belonging to an enemy, with a view of weakening him (§160), and sometimes of punishing him (§162), it is no less lawful in a just war to appropriate them to our own use, by way of compensation, which the civilians term expletio juris (§161). They are retained as an equivalent for what is due by the enemy, for the expenses and damages which he has occasioned, and even (when there is cause to punish him) as a commutation for the punishment he has deserved. For when I cannot obtain the individual thing which belongs or is due to me, I have a right to an equivalent, which, by the rules of expletive justice, and in moral estimation, is considered as the thing itself. Thus, according to the law of nature, which constitutes the necessary law of nations, war founded on justice is a lawful mode of acquisition.

§194. Measure of the right it gives.But that sacred law does not authorise even the acquisitions made in a just war, any farther than as they are approved by justice,—that is to say, no farther than is requisite to obtain complete satisfaction in the degree necessary for accomplishing the lawful ends we have just mentioned. An equitable conqueror, deaf to the suggestions of ambition and avarice, will make a just estimate of what is due to him,—that is to say, of the thing which has been the subject of the war (if the thing itself is no longer reco-verable), and of the damages and expenses of the war,—and will retain no more of the enemy’s property than what is precisely sufficient to furnish the equivalent. But if he has to do with a perfidious, restless, and dangerous enemy, he will, by way of punishment, deprive him of some of his towns or provinces, and keep them to serve as a barrier to his own dominions. Nothing is more allowable than to weaken an enemy who has rendered himself suspected and formidable. The lawful end of punishment is future security. The conditions necessary for rendering an acquisition, made by arms, just and irreproachable before God and our own conscience, are these—justice in the cause, and equity in the measure of the satisfaction.

§195. Rules of the voluntary law of nations.But nations cannot, in their dealings with each other, insist on this rigid justice. By the rules of the voluntary law of nations, every regular war is on both sides accounted just, as to its effects (§190); and no one has a right to judge a nation, respecting the unreasonableness of her claims, or what she thinks necessary for her own safety (Prelim. §21). Every acquisition, therefore, which has been made in regular warfare, is valid according to the voluntary law of nations, independently of the justice of the cause, and the reasons which may have induced the conqueror to assume the property of what he has taken. Accordingly, nations have ever esteemed conquest a lawful title; and that title has seldom been disputed, unless where it was derived from a war not only unjust in itself, but even destitute of any plausible pretext.

§196. Acquisition of movable property.The property of movable effects is vested in the enemy from the moment they come into his power; and if he sells them to neutral nations, the former proprietor is not entitled to claim them. But such things must be actually and truly in the enemy’s power, and carried to a place of safety. Suppose a foreigner coming into our country buys a portion of the booty which a party of enemies have just taken from us: our men who are in pursuit of this party may very justly seize on the booty which that foreigner was over precipitate in buying. On this head Grotius quotes from De Thou the instance of the town of Lierre in Brabant, which having been captured and recaptured on the same day, the booty taken from the inhabitants was restored to them because it had not been twenty-four hours in the enemy’s hands.* This space of twenty-four hours, together with the practice observed at sea,† is an institution of the law of nations established by agreement or custom, and is even a civil law in some states. The natural reason of the conduct adopted towards the inhabitants of Lierre is, that the enemy being taken as it were in the fact, and before they had carried off the booty, it was not looked upon as having absolutely become their property, or been lost to the inhabitants. Thus, at sea, a ship taken by the enemy, may be retaken and delivered by other ships of her own party, as long as she has not been carried into some port, or into the midst of a fleet: her fate is not decided, nor is the owner’s property irrecoverably lost, until the ship be in a place of safety with regard to the enemy who has taken her, and entirely in his power. But the ordinances of every state may make different regulations on this head between the citizens,‡ with a view either to prevent disputes or to encourage armed vessels to retake merchant ships that have fallen into the enemy’s hands.

The justice or injustice of the cause does not here become an object of consideration. There would be no stability in the affairs of mankind, no safety in trading with nations engaged in war, if we were allowed to draw a distinction between a just and an unjust war, so as to attribute lawful effects to the one, which we denied to the other. It would be opening a door to endless discussions and quarrels. This reason is of such weight, that, on account of it, the effects of a public war, at least with regard to movables, have been allowed to expeditions which deserved no other name than that of predatory enterprises, though carried on by regular armies. When, after the wars of the English in France, the grandes compagnies ranged about Europe, sacking and pillaging wherever they came, none of the sufferers was ever known to claim the booty which those plunderers had carried off and sold. At present it would be in vain to claim a ship taken by the Barbary corsairs, and sold to a third party, or retaken from the captors; though it is very improperly that the piracies of those barbarians can be considered as acts of regular war. We here speak of the external right: the internal right and the obligations of conscience undoubtedly require that we should restore to a third party the property we recover from an enemy who had despoiled him of it in an unjust war,—provided he can recognise that property, and will defray the expenses we have incurred in recovering it. Grotius quotes many instances of sovereigns and commanders who have generously restored such booty, even without requiring any thing for their trouble or expense.* But such conduct is pursued only in cases where the booty has been recently taken. It would be an impracticable task, scrupulously to seek out the proprietors of what has been captured a long time back: and moreover they have, no doubt, relinquished all their right to things which they had no longer any hope of recovering. Such is the usual mode of thinking with respect to captures in war, which are soon given up as irrecoverably lost.

§197. Acquisition of immoveables,— or conquest.Immovable possessions, lands, towns, provinces, &c. become the property of the enemy who makes himself master of them: but it is only by the treaty of peace, or the entire submission and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect.

§198. How to transfer them validly.Thus a third party cannot safely purchase a conquered town or province, till the sovereign from whom it was taken has renounced it by a treaty of peace, or has been irretrievably subdued, and has lost his sovereignty: for, while the war continues,—while the sovereign has still hopes of recovering his possessions by arms,—is a neutral prince to come and deprive him of the opportunity by purchasing that town or province from the conqueror? The original proprietor cannot forfeit his rights by the act of a third person; and if the purchaser be determined to maintain his purchase, he will find himself involved in the war. Thus the king of Prussia became a party with the enemies of Sweden, by receiving Stettin from the hands of the king of Poland and the czar, under the title of sequestration.* But when a sovereign has, by a definitive treaty of peace, ceded a country to the conqueror, he has relinquished all the right he had to it; and it were absurd that he should be allowed to demand the restitution of that country by a subsequent conqueror who wrests it from the former, or by any other prince, who has purchased it, or received it in exchange, or acquired it by any title whatever.

§199. Conditions on which a conquered town is acquired.The conqueror who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorises him to possess himself of what belongs to his enemy: if he deprives him of the sovereignty of that town or province, he acquires it such as it is, with all its limitations and modifications. Accordingly, care is usually taken to stipulate, both in particular capitulations and in treaties of peace, that the towns and countries ceded shall retain all their liberties, privileges, and immunities. And why should they be deprived of them by the conqueror, on account of his quarrel with their sovereign? Nevertheless, if the inhabitants have been personally guilty of any crime against him, he may, by way of punishment, deprive them of their rights and privileges. This he may also do if the inhabitants have taken up arms against him, and have thus directly become his enemies. In that case, he owes them no more than what is due from a humane and equitable conqueror to his vanquished foes. Should he purely and simply incorporate them with his former states, they will have no cause of complaint.

Hitherto I evidently speak of a city or a country which is not simply an integrant part of a nation, or which does not fully belong to a sovereign, but over which that nation or that sovereign has certain rights. If the conquered town or province fully and perfectly constituted a part of the domain of a nation or sovereign, it passes on the same footing into the power of the conqueror. Thenceforward united with the new state to which it belongs,—if it be a loser by the change, that is a misfortune which it must wholly impute to the chance of war. Thus, if a town which made part of a republic or a limited monarchy, and enjoyed a right of sending deputies to the supreme council or the general assembly of the states, be justly conquered by an absolute monarch, she must never more think of such privileges: they are what the constitution of the new state to which she is annexed does not permit.

§200. Lands of private persons.In the conquests of ancient times, even individuals lost their lands. Nor is it matter of surprise that in the first ages of Rome such a custom should have prevailed. The wars of that aera were carried on between popular republics and communities. The state possessed very little, and the quarrel was in reality the common cause of all the citizens. But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.

§201. Conquest of the whole state.But if the entire state be conquered, if the nation be subdued, in what manner can the victor treat it, without transgressing the bounds of justice? What are his rights over the conquered country? Some have dared to advance this monstrous principle, that the conqueror is absolute master of his conquest,—that he may dispose of it as his property,—that he may treat it as he pleases, according to the common expression of treating a state as a conquered country; and hence they derive one of the sources of despotic government. But, disregarding such writers, who reduce men to the state of transferable goods, or beasts of burthen,—who deliver them up as the property or patrimony of another man,—let us argue on principles countenanced by reason, and conformable to humanity.

The whole right of the conqueror is derived from justifiable self-defence (§§3, 26, 28), which comprehends the support and prosecution of his rights. When, therefore, he has totally subdued a hostile nation, he undoubtedly may, in the first place, do himself justice respecting the object which had given rise to the war, and indemnify himself for the expenses and damages he has sustained by it: he may, according to the exigency of the case, subject the nation to punishment, by way of example: he may even, if prudence so require, render her incapable of doing mischief with the same ease in future. But, for the attainment of these different objects, he is to prefer the gentlest methods,—still bearing in mind, that the doing of harm to an enemy is no farther authorised by the law of nature, than in the precise degree which is necessary for justifiable self-defence, and reasonable security for the time to come. Some princes have contented themselves with imposing a tribute on the conquered nation,—others, with depriving her of some of her rights, taking from her a province, or erecting fortresses to keep her in awe: others, again, confining their quarrel to the sovereign alone, have left the nation in the full enjoyment of all her rights,—only setting over her a new sovereign, of their own appointment.

But if the conqueror thinks proper to retain the sovereignty of the conquered state, and has a right to retain it, the same principles must also determine the manner in which he is to treat that state. If it is against the sovereign alone that he has just cause of complaint, reason plainly evinces that he acquires no other rights by his conquest than such as belonged to the sovereign whom he has dispossessed: and, on the submission of the people, he is bound to govern them according to the laws of the state. If the people do not voluntarily submit, the state of war still subsists.

A conqueror who has taken up arms, not only against the sovereign, but against the nation herself, and whose intention it was to subdue a fierce and savage people, and once for all to reduce an obstinate enemy,— such a conqueror may with justice lay burthens on the conquered nation, both as a compensation for the expenses of the war, and as a punishment. He may, according to the degree of indocility apparent in their disposition, govern them with a tighter rein, so as to curb and subdue their impetuous spirit: he may even, if necessary, keep them for some time in a kind of slavery. But this forced condition ought to cease from the moment the danger is over,—the moment the conquered people are become citizens: for then the right of conquest is at an end, so far as relates to the pursuit of those rigorous measures, since the conqueror no longer finds it necessary to use extraordinary precautions for his own defence and safety. Then at length every thing is to be rendered conformable to the rules of a wise government, and the duties of a good prince.

When a sovereign, arrogating to himself the absolute disposal of a people whom he has conquered, attempts to reduce them to slavery, he perpetuates the state of warfare between that nation and himself. The Scythians said to Alexander the Great, “There is never any friendship between the master and slave: in the midst of peace the rights of war still subsist.”* Should it be said, that in such a case there may be peace, and a kind of compact by which the conqueror consents to spare the lives of the vanquished, on condition that they acknowledge themselves his slaves,—he who makes such an assertion is ignorant that war gives no right to take away the life of an enemy who has laid down his arms, and submitted (§140). But let us not dispute the point: let the man who holds such principles of jurisprudence, keep them for his own use and benefit: he well deserves to be subject to such a law. But men of spirit, to whom life is nothing, less than nothing, unless sweetened with liberty, will always conceive themselves at war with that oppressor, though actual hostilities are suspended on their part through want of ability. We may therefore safely venture to add, that if the conquered country is to be really subject to the conqueror as to its lawful sovereign, he must rule it according to the ends for which civil government has been established. It is generally the prince alone who occasions the war, and consequently the conquest. Surely it is enough that an innocent people suffer the calamities of war: must even peace itself become fatal to them? A generous conqueror will study to relieve his new subjects, and mitigate their condition: he will think it his indispensable duty. “Conquest (says an excellent man) ever leaves behind it an immense debt, the discharge of which is absolutely necessary to acquit the conqueror, in the eye of humanity.”†

It fortunately happens that, in this particular as in every thing else, sound policy and humanity are in perfect accord. What fidelity, what assistance, can you expect from an oppressed people? Do you wish that your conquest may prove a real addition to your strength, and be well affected to you?—treat it as a father, as a true sovereign. I am charmed with the generous answer recorded of an embassador from Privernum. Being introduced to the Roman senate, he was asked by the consul— “If we shew you clemency, what dependence can we have on the peace you are come to sue for?” “If” (replied the embassador) “you grant it on reasonable conditions, it will be safe and permanent: otherwise, it will not last long.” Some took offence at the boldness of this speech; but the more sensible part of the senate approved of the Privernian’s answer, deeming it the proper language of a man, and a freeman. “Can it be imagined (said those wise senators) that any nation, or even any individual, will longer continue in an irksome and disagreeable condition, than while compelled to submit to it? If those to whom you give peace receive it voluntarily, it may be relied on: what fidelity can you expect from those whom you wish to reduce to slavery?”* —“The most secure dominion,” said Camillus,60 “is that which is acceptable to those over whom it is exercised.”†

Such are the rights which the law of nature gives to the conqueror, and the duties which it imposes on him. The manner of exerting the one, and fulfilling the other, varies according to circumstances. In general, he ought to consult the true interests of his own state, and by sound policy to reconcile them, as far as possible, with those of the conquered country. He may, in imitation of the kings of France, unite and incorporate it with his own dominions. Such was the practice of the Romans: but they did this in different modes according to cases and conjunctures. At a time when Rome stood in need of an increase of population, she destroyed the town of Alba, which she feared to have as a rival: but she received all its inhabitants within her walls, and thereby gained so many new citizens. In after times the conquered cities were left standing, and the freedom of Rome was given to the vanquished inhabitants. Victory could not have proved so advantageous to those people as their defeat.

The conqueror may likewise simply put himself in the place of the sovereign whom he has dispossessed. Thus the Tartars have acted in China: the empire was suffered to subsist in its former condition, except that it fell under the dominion of a new race of sovereigns.

Lastly, the conqueror may rule his conquest as a separate state, and permit it to retain its own form of government. But this method is dangerous: it produces no real union of strength; it weakens the conquered country, without making any considerable addition to the power of the victorious state.

§202. To whom the conquest belongs.It is asked to whom the conquest belongs,—to the prince who has made it, or to the state? This question ought never to have been heard of. Can the prince, in his character of sovereign, act for any other end than the good of the state? Whose are the forces which he employs in his wars? Even if he made the conquest at his own expense, out of his own revenue, or his private and patrimonial estates, does he not make use of the personal exertions of his subjects in achieving it? does he not shed their blood in the contest? But supposing even that he were to employ foreign or mercenary troops, does he not expose his nation to the enemy’s resentment? does he not involve her in the war? And shall he alone reap all the advantages of it? Is it not for the cause of the state, and of the nation, that he takes up arms? The nation therefore has a just claim to all the rights to which such war gives birth.

If the sovereign embarks in a war, of which his own personal interests are the sole ground,—as, for instance, to assert his right of succession to a foreign sovereignty,—the question then assumes a new face. In this affair the state is wholly unconcerned: but then the nation should be at liberty either to refuse engaging in it, or to assist her prince, at her own option. If he is empowered to employ the national force in support of his personal rights, he should, in such case, make no distinction between these rights and those of the state. The French law, which annexes to the crown all acquisitions made by the king, should be the law of all nations.

§203. Whether we are to set at liberty a people whom the enemy had unjustly conquered.It has been observed (§196) that we may be obliged, if not externally, yet in conscience, and by the laws of equity, to re-store to a third party the booty we have recovered out of the hands of an enemy who had taken it from him in an unjust war. The obligation is more certain and more extensive, with regard to a people whom our enemy had unjustly oppressed. For a people thus spoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued,— if they have not freely aided her in the war against us,—we certainly ought so to use our victory, as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend. The canton of Schweitz having wrested the country of Glaris from the house of Austria, restored the inhabitants to their former liberties; and Glaris, admitted into the Helvetic confederacy, formed the sixth canton.*

[* ] Grotius, de Jure Belli et Pacis, lib. iii. cap. 6, §3, n. 7.

[† ] See Grotius, ibid. and in the text.

[‡ ] Grotius, ibid.

[* ] Grotius, lib. iii. cap. 16 [[Law of War and Peace.

]]

[* ] By the treaty of Schwedt, October 6, 1713.

[* ] Inter dominum et servum, nulla amicitia est; etiam in pace, belli tamen jura servantur. Q. Curt. lib. vii. cap. 8.

[† ] Montesquieu, in his Spirit of Laws. [[Book 10, chaps. 3–4.

]]

[* ] Quid, si poenam (inquit consul) remittimus vobis, qualem nos pacem vobiscum habituros speremus? Si bonam dederitis, inquit, et fidam et perpetuam; si malam, haud diuturnam. Tum vero minari, nec id ambigue Privernatem, quidam, et illis vocibus ad rebellandum incitari pacatos populos. Pars melior senatûs ad meliora responsa trahere, et dicere viri et liberi vocem auditam: an credi posse ullum populum, aut hominem denique, in eâ conditione cujus eum poeniteat, diutius quam necesse sit, mansurum? ibi pacem esse fidam, ubi voluntarii pacati sint; neque eo loco, ubi servitutem esse velint, fidem sperandam esse. Tit. Liv. lib. viii. cap. 21.

[60. ] Marius Furius Camillus, 446–364 bc, Roman soldier and statesman. He served as censor, and on five occasions as dictator.

[† ] Certe id firmissimum longe imperium est, quo obedientes gaudent. Tit. Liv. lib. viii. cap. 13.

[* ] Histoire de la Confédération Helvétique, par M. De Watteville. liv. iii. under the year 1351.