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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 freemen; and no subjects by conquest; let that give what dominion it will。 And if 1; or any body 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。 Sec。 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。 Sec。 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 unjustice 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 conquerors 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。 Sec。 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 sword。 Sec。 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。 Sec。 182。 But because the miscarriages of the father are no faults of the children; and they 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; but 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 thro'infancy; absence; or choice; they have done nothing to forfeit them: nor has the conqueror any right to take them away; by the bare title 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; 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。 Sec。 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