CHAPTER 8: On Empire Over the Conquered.
Civil and sovereign jurisdiction acquired by conquest — Effects of
such acquisition — Absolute power or mixed power gained by conquest —
Incorporeal rights acquired in the same manner — Thessalian bond
I. IF INDIVIDUALS can reduce each other to subjection, it is not
surprising that states can do the same, and by this means acquire a civil,
absolute, or mixed, dominion. So that, in the language of Tertullian, victory
has often been the foundation of dominion, and it often happens, as Quintilian
remarks, that the boundaries of states and kingdoms, of nations and cities, can
only be settled by the laws of war.
Quintus Curtius relates of Alexander, that he said, it was for conquerors to
dictate laws, which the conquered were bound to receive. This has always been a
general opinion and rule, thus Ariovistus, in Caesar, laid it down as an
indubitable right of war, for the conqueror to impose whatever terms he pleased
upon the conquered, nor did he suppose the Roman people would allow any one to
interpose with them in the discretionary use of this right.
By conquest, a prince succeeds to all the rights of the conquered sovereign
or state; and if it be a common. wealth, he acquires all the rights and
privileges, which the people possessed. He gains the same right, which the
state had before, to alienate the possessions, or to transmit them if he chuses
to his descendants, by which means they will become a patrimonial territory.
II. The right of conquest may go even beyond this. A state may hereby
lose its political existence, so far as to form an appendage to another power,
which was the case with the Roman provinces: or if a king engaged in war
against a state, at his own expence, has reduced it to complete subjection, his
authority over it becomes an absolute, rather than a limited sovereignty. It
can no longer be called an independent state, but, by the right of conquest,
forms an integral part of the prince's immediate dominions. Xenophon in drawing
the character of Agesilaus, commends him for requiring no other services and
obedience of the cities he had conquered, than what is usually paid by subjects
to their lawful sovereigns.
III. From hence it will be easy to understand what is meant by a
mixed government, composed partly of civil, and partly of absolute power;
— it is a government, where subjection is united with some degree of
We sometimes read of nations, that have been so far subdued, as to be
deprived of the use of all warlike arms, being allowed to retain no instruments
of iron, but the implements of husbandry; and of others, that have been
compelled to change their national customs and language.
IV. States as well as individuals may lose their property by the laws
of war: and even a voluntary surrender is in reality nothing more than giving
up what might have been taken by force. For as Livy says, where all things
submit to the power of arms, the conqueror may impose whatever terms, and exact
whatever fines he pleases. Thus the Roman people by the victories of Pompey
acquired all the territories, which Mithridates had gained by conquest.
The incorporeal rights too, belonging to one state, may pass to another by
the rights of conquest. Upon the taking of Alba, the Romans retained all the
rights belonging to that city. From hence it follows, that the Thessalians were
released from the obligation of paying a sum of money, which they owed to the
Thebans; Alexander, upon the taking of Thebes, having, as a conqueror, forgiven
the debt. Nor is the argument used by Quintlian in favour of the Thebans, at
all convincing: he maintains that nothing but what is of a tangible nature can
pass by right of conquest, a class of things to which incorporeal rights can
never be reduced: and that there is a material difference between inheritance
and victory, the former of which may convey incorporeal rights, but the latter
can give nothing except things of a solid and visible substance.
But on the other hand it may be justly said, that whoever is master of the
persons, is master also of all the rights and things, which are vested in those
persons, who are in that case considered as having nothing of their own. Indeed
if any one should leave to a conquered people their rights, as a state, still
there are some things belonging to that state, which he might appropriate to
himself. For it is in his own power to determine, to what extent his
generosity, or the exertion of his right shall go. Caesar imitated the conduct
of Alexander, in forgiving the Dyrrachians a debt, which they owed to some one
of the opposite party. But the kind of war, in which Caesar was engaged does
not fall within the rules of the law of nations.
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