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fhould be any difference in their freedom or privileges.

§. 178. But fuppofing, which feldom happens, that the conquerors and conquered never incorporate into one people, under the fame laws and freedom; let us fee next what power a lawful conqueror has over the fubdued: and that I fay is purely defpotical. He has an abfolute 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 poffeffions even of those who were actually engaged in it.

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§. 179. Secondly, I fay then the conqueror gets no power but only over those who have actually affifted, concurred, or confented to that unjust force that is ufed against him: for the people having given to their governors no power to do an unjust thing, fuch as is to make an unjuft war, (for they never had fuch a power in themselves) they ought not to be charged as guilty of the violence and unjuftice 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 oppreffion their governors fhould ufe upon the people themfelves, or any part of their fellow fubjects, they having impowered them no more to the one than to the other. Conquerors, it is true, feldom trouble themselves to make the diftinction, A a 3

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but they willingly permit the confufion of war to fweep 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 fo 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.

§. 180. Thirdly, The power a conqueror gets over those he overcomes in a just war, is perfectly defpotical: he has an abfolute power over the lives of thofe, who, by putting themfelves in a state of war, have forfeited them; but he has not thereby a right and title to their poffeffions. This I doubt not, but at first fight will feem a ftrange doctrine, it being fo quite contrary to the practice of the world; there being nothing more familiar in fpeaking of the dominion of countries, than to fay fuch an one conquered it; as if conqueft, without any more ado, conveyed a right of poffeffion. But when we confider, that the practice of the strong and powerful, how univerfal foever it may be, is feldom the rule of right, however it be one part of the fubjection of the conquered,

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not to argue against the conditions cut out to them by the conquering fword. > ~

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§. 181. Though in all war there be usually a complication of force and damage, and the aggreffor feldom fails to harm the estate, when he ufes 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 refufes to make reparation, and by force maintains it, (which is the fame thing, as at first to have done it by force) it is the unjuft ufe 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 fame thing; fuppofing 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 fuch I am now fpeaking. It is the unjust use of force then, that puts a man into the fate 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 ufing force, the way of beafts, he becomes liable to be destroyed by him he uses force against, as any favage ravenous beaft, that is dangerous to his being.

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§. 182.

§. 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 mifcarriages and violence, can forfeit but his own life, but involves not his children in his guilt or deftruction. His goods, which nature, that willeth the preservation of all mankind as much as is poffible, hath made to belong to the children to keep them from perishing, do ftill continue to belong to his children: for fuppofing 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 fubdued him that by force attempted his deftruction; though perhaps he may have fome right to them, to repair the damages he has fuftained by the war, and the defence of his own right; which how far it reaches to the poffeffions of the conquered, we fhall fee by and by. So that he that by conqueft has a right over a man's person to destroy him if he pleases, has not thereby a right over his eftate to poffefs and enjoy it for it is the brutal force the aggreffor has ufed, 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 fuftained that alone gives him title to another man's goods: for though I

may

may kill a thief that fets 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 fide. His force, and the ftate of war he put himself in, made him forfeit his life, but gave me no title to his goods. The right then of conqueft extends only to the lives of those who joined in the war, not to their eftates, but only in order to make reparation for the damages received, and the charges of the war, and that too with refervation of the right of the innocent wife and children.

§. 183. Let the conqueror have as much juftice on his fide, as could be fuppofed, he has no right to feize more than the vanquished could forfeit: his life is at the victor's mercy; and his fervice 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 fhares in the estate he poffeffed: for example, I in the state of nature (and all common-wealths are in the ftate of nature one with another) have injured another man, and refufing to give fatiffaction, it comes to a ftate of war, wherein my defending by force what I had gotten unjustly, makes me the aggreffor. I am conquered my life, it is true, as forfeit, is at mercy, but not my wife's and children's. They made not the war, nor affifted in it.

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