The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the right of sovereignty, acquired over the conquered.
I. BESIDES the effects of war, hitherto mentioned, there remains one more, the most important of all, and which we shall here consider; I mean the right of sovereignty, acquired over the conquered. We have already remarked, that when explaining the different ways of obtaining the supreme power, that in general it may be acquired either in a violent manner, and by the right of conquest, etc.
II. We must however observe, that war or conquest, considered in itself, is not properly the cause of this acquisition; that is, it is not the immediate origin of sovereignty. For the supreme power is founded on the tacit or express consent of the people, without which the state of war still subsists; for we cannot conceive how there can be an obligation to obey a person, to whom we have promised no subjection. War then is properly speaking, no more than the occasion of obtaining the sovereignty; as the conquered choose rather to submit to the victor, than to expose themselves to total destruction.
III. Besides, the acquisition of sovereignty by the right of conquest cannot, strictly speaking, pass for lawful, unless the war be just in itself, and the end proposed authorizes the conqueror to carry things to such extremity, as to acquire the supreme power over the vanquished; that is to say, either our enemy must have no other means of paying what he owes us, and of indemnifying us for the damages he has committed; or our own safety must absolutely oblige us to make him dependent on us. In such circumstances, it is certain, that the resistance of a vanquished enemy, authorizes us to push the acts of hostility against him so far, as to reduce him entirely under our power; and we may, without injustice, take advantage of the superiority of our arms to extort from him the consent, which he ought to give us of his own accord.
IV. These are the true principles, on which sovereignty by the right of conquest is grounded. Hence we may conclude, that if, upon this foundation, we were to judge of the different acquisitions of this nature, few of them would be found well established; for it rarely happens, that the vanquished are reduced to such extremity, as not to be able to satisfy the just pretensions of the conqueror, otherwise than by submitting themselves to his dominion.
V. Let us however observe, that the interest and tranquillity of nations require, that we should moderate the rigor of the principles, above established. If he, who has constrained another, by the superiority of his arms, to submit to his dominion, had undertaken a war manifestly unjust, or if the pretext, on which it is founded, be visibly frivolous in the judgment of every reasonable person, I freely confess, that a sovereignty, acquired in such circumstances, would be unjust; and I see no reason, why the vanquished people should be more obliged to keep such a treaty, than a man who had fallen into the hands of robbers, would be under an obligation to pay, at their demand, the money he had promised them for the ransom of his life and liberty.
VI. But if the conqueror had undertaken a war for some specious reason, though perhaps at the bottom not strictly just, the common interest of mankind requires, that we should observe the engagements, we have entered into with him, though extorted by a terror in itself unjust; so long at least, as no new reason supervenes, which may lawfully exempt us from keeping our promise. For, as the law of nature directs, that societies, as well as individuals, should labor for their preservation, it obliges us, for this reason, not indeed to consider the acts of hostility committed by an unjust conqueror, as properly just, but to look upon the engagement of an express, or tacit treaty, as nevertheless valid. So that the vanquished cannot be released from observing it, under the pretext of its being caused by an unjust fear, as he might otherwise do, had he no regard to the advantages accruing from it to mankind.
VII. These considerations will have still a greater weight, if we suppose, that the conqueror, or his posterity, peaceably enjoy the sovereignty, which he has acquired by right of conquest, and besides, that he govern the vanquished like a humane and generous prince. In such circumstances, a long possession, accompanied with an equitable government, may legitimate a conquest, in its beginning and principle the most unjust.
VIII. There are modern civilians, who explain the thing somewhat differently. These maintain, that in a just war the victor acquires a full right of sovereignty over the vanquished, by the single title of conquest, independently of any convention; and even though the victor has otherwise obtained all the satisfaction and indemnification, he could require.
IX. The principal argument, these writers make use of, is, that otherwise the conqueror could not be certain of the peaceable possession of what he has taken, or forced the conquered to give him, for his just pretensions; since they might retake it from him, by the same right of war.
X. But this reason proves only, that the conqueror, who has taken possession of the enemy’s country, may command in it while he holds it, and not resign it, till he has good security, that he shall obtain or possess, without hazard, what is necessary for the satisfaction and indemnity, which he has a right to exact by force. But the end of a just war does not always demand, that the conqueror should acquire an absolute and perpetual right of sovereignty over the conquered. It is only a favorable occasion of obtaining it, and for that purpose, there must always be an express or tacit consent of the vanquished. Otherwise, the state of war still subsisting, the sovereignty of the conqueror has no other title, than that of force, and lasts no longer, than the vanquished are unable to throw off the yoke.
XI. All that can be said, is, that neutral powers, purely because they are such, may and ought to look upon the conqueror, as the lawful possessor of the sovereignty, even though they should believe the war unjust on his side.
XII. The sovereignty, thus acquired by the right of war, is generally of the absolute kind. But sometimes the vanquished enter into certain conditions with the conqueror, which limit, in some measure the power he acquires over them. Be this as it may, it is certain, that no conquest ever authorises a prince to govern a people tyrannically; since, as we have before shown, the most absolute sovereignty gives no right to oppress those, who have surrendered; for even the very intention of government, and the laws of nature, equally conspire to lay the conqueror under an obligation, of governing those, whom he has subdued, with moderation and equity.
XIII. There are therefore several precautions to be used in the exercise of the sovereignty, acquired over the vanquished; such for instance was that prudent moderation of the ancient Romans, who confounded, in some measure, the vanquished with the victors, by hastening to incorporate them with themselves, and to make them sharers of their liberty and advantages. A piece of policy doubly salutary; which, at the same time, that it rendered the condition of the vanquished more agreeable, considerably strengthened the power and empire of the Romans. “What would our empire now have been,” says Seneca, “if the vanquished had not been intermixed with the victors, by the effect of a sound policy?” “Romulus, our founder,” says Claudius in Tacitus, “was very wise with respect to most of the people he subdued, by making those, who were his enemies, the same day citizens.”
XIV. Another moderation in victory consists in leaving to the conquered, either kings or people, the sovereignty, which they enjoyed, and not to change the form of their government, No better method can be taken to secure a conquest; and of this we have several examples in ancient history, especially in that of the Romans.
XV. But if the conqueror cannot, without danger to himself, grant all these advantages to the conquered; yet things may be so moderated, that some part of sovereignty shall be left to them, or to their kings. Even when we strip the vanquished entirely of their independency, we may still leave them their own laws, customs, and magistrates, in regard to their public and private affairs, of small importance.
XVI. We must not, above all things, deprive the vanquished of the exercise of their religion, unless they happen to be convinced of the truth of that, which the conqueror professes. This complaisance is not only of itself very agreeable to the vanquished, but the conqueror is absolutely obliged to it; and he cannot, without tyranny, oppress them in this article. Not that he ought not to try to bring the vanquished to the true religion; but he should only use such means, as are proportioned to the nature of the thing, and to the end he has in view; and such, as have in themselves nothing violent, or contrary to humanity.
XVII. Let us observe lastly, that not only humanity, but prudence also, and even the interest of the victor, require that what we have been saying, with respect to a vanquished people should be strictly practised. It is an important maxim in politics, that, it is more difficult to keep, than to conquer provinces. Conquests demand no more than force, but justice must preserve them. These are the principal things to be observed, in respect to the different effects of war, and to the most essential questions relative to that subject. But as we have already had occasion to make mention of the article of neutrality, it will not be improper to say something more particular about it.
I. There is a general and a particular neutrality. The general is, when, without being allied to either of the two enemies at war, we are disposed to render to each the good offices, which every nation is naturally obliged to perform to other states.
II. The particular neutrality is, when we are particularly engaged to be neuter by some compact, either tacit or express.
III. The latter species of neutrality is either full and entire, when we behave alike towards both parties; or limited, as when we favour one side more than the other.
IV. We cannot lawfully constrain any person to enter into a particular neutrality; because every one is at liberty to make, or not to make, particular treaties, or alliances; or at least, they are not bound to do it, but by virtue of an imperfect obligation. But he, who has undertaken a just war, may oblige other nations to observe an exact and general neutrality; that is to say, not to favor his enemy more than himself.
V. We shall give here an abstract, as it were, of the duties of neutral nations. They are obliged equally to put in practice, towards both parties at war, the laws of nature, as well absolute as conditional, whether these impose a perfect, or only an imperfect obligation.
VI. If they do the one any office of humanity, they ought not to refuse the like to the other, unless there be some manifest reason, which engages them to do something in favor of the one, which the other had otherwise no right to demand.
VII. But they are not obliged to do offices of humanity to one party, when they expose themselves to great danger, by refusing them to the other, who has as good a right to demand them.
VIII. They ought not to furnish either party with things, which serve to exercise acts of hostility,1 unless they are authorized to do it by some particular engagement; and in regard to those, which are of no use in war, if they supply one side with them, they must also the other.
IX. They ought to use all their endeavours to bring matters to an accommodation, that the injured party may obtain satisfaction, and the war be brought to speedy conclusion.
X. But if they be under any particular engagement, they should punctually fulfil it.
XI. On the other side, those, who are at war, must exactly observe, towards neutral nations, the laws of sociability, and not exercise any act of hostility against them, nor suffer their country to be plundered.
XII. They may however, in case of necessity, take possession of a place, situated in a neutral country; provided, that, as soon as the danger is over, they restore it to the right owner, and make him satisfaction for the damages, he has received.
1. Those commodities, which serve to exercise acts of hostility, or are particularly useful in war, and in which the commerce of neutral with belligerent nations is forbidden by the laws of war, are denominated contraband goods. On this subject see Grotius de Jure Belli et Pacis, lib. III. cap. L Also Vattel’s Law of Nations, b. III. ch. VII.