Page images
PDF
EPUB

$. 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 poffeffions 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 eftate to pofsefs 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

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.

§. 183. Let the conqueror have as much justice on his fide, 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 the estate he pofféffed: for example, I in the state of nature (and all common-wealths are in the state of nature one with another) have injured another man, and refusing to give fatisfaction, it comes to a state of war, wherein my defending by force what I had gotten unjustly, makes me the aggressor. 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 affisted in it.

I could

[ocr errors]

I could not forfeit their lives ; they were not mine to forfeit. My wife had a share in my estate ; that neither could I forfeit. And my children also, being born of me, had a right to be maintained out of my labour or substance. Here then is the case : the conqueror

has a title to reparation for damages received, and the children have a title to their father's estate for their fubfiftence : for as to the wife's share, whether her own labour, or compact, gave her a title to it, it is plain, her husband could not forfeit what was her's. What must be done in the case ? I answer; the fundamental law of nature being, that all, as much as may be, should be preserved, it follows, that if there be not enough fully to satisfy both, viz. for the conqueror's loses, and children's maintenance, he that hath, and to spare, must remit something of his full satisfaction, and give way to the pressing and preferable title of those who are in danger to perish without it.

§. 184. But supposing the charge and damages of the war are to be made up to the conqueror, to the utmost farthing ; and that the children of the vanquished, spoiled of all their father's goods, are to be left to starve and perish ; yet the satisfying of what shall, on this score, be due to the conqueror, will fcarce give him a title to any country be shall conquer : for the damages of war can scarcé amount to the value of any confiderable tract

of

the con

of land, in any part of the world, where all the land is possessed, and none lies waste, And if I have not taken

away queror's land, which, being vanquished, it is impossible I should; scarce any other spoil I have done him can amount to the value of mine, suppofing it equally cultivated, and of an extent any way coming near what I had over-run of his. The destruction of a year's product or two (for it feldom reaches four or five) is the utmost spoil that usually can be done: for as to money, and such riches and treasure taken away, these are none of nature's goods, they have but a fantastical imaginary value : nature has put no such upon them : they are of no more account by her standard, than the wampompeke of the Americans to an European prince, or the silver money of Europe

Europe would have been formerly to an American. And five years product is not worth the perpetual inheritance of land, where all is possessed, and none remains waste, to be taken up by him that is difseized : which will be easily granted, if one do but take away the imaginary value of money, the disproportion being more than between five and five hundred; though, at the same time, half a year's product is more worth than the inheritance, where there being more land than the inhabitants possess and make use of, any one has liberty to make use of the waste : but there conquerors take

little care to possess themselves of the lands of the vanquished. No damage therefore, that men in the state of nature (as all princes and governments are in reference to one another) suffer from one another, can give a conqueror power to dispossess the posterity of the vanquilhed, and turn them out of that inheritance, which ought to be the possession of them and their descendants to all generations.

The conqueror indeed will be apt to think himself master : and it is the very condition of the subdued not to be able to dispute their right. But if that be all, it gives no other title than what bare force gives to the stronger over the weaker : and, by this reason, he that is strongest will have a right to whatever he pleases to seize on.

§. 185. Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the

pofterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion : they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.

$. 186. The conqueror, it is true, usually, by the force he has over them, compels them, with a sword at their breasts, to stoop to his conditions, and submit to such a government as he pleases to afford them ; but the enquiry is, what right he has to do so?

If

« PreviousContinue »