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Conquest ^†

(Conquête)

CONQUEST (Law of nations), acquisition of sovereignty by the superior arms of a foreign prince, who forces the defeated to submit to his dominion.

It is very important to establish the just power of the right of conquest—its laws, its spirit, its effects—and the foundations of the sovereignty acquired in this manner. But in order not to get lost on dark and untrod paths from lack of illumination, I will take on enlightened guides, known to all the world, who have newly and attentively traversed these tricky routes and who, holding me by the hand, will prevent me from falling.¹

The right of conquest may be defined as a necessary, legitimate, and unfortunate right, which always leaves an immense debt to be discharged if human nature is to be repaid.²

From the right of war derives that of conquest, which is its consequence.³ When a people is conquered, the right of the conqueror follows four sorts of laws: the law of nature, which makes everything tend toward the preservation of species; the law of natural enlightenment, which has us do to others what we would want to have done to us; the law that forms political societies, which are such that nature has not limited their duration; lastly, the law drawn from the thing itself.

Thus, a state that has conquered another treats it in one of these four ways: either it continues to govern its conquest according to its own laws and takes for itself only the exercise of the political and civil government;

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or it gives its conquest a new political and civil government; or it destroys the society and scatters its members off into other societies; or, finally, it exterminates all the citizens.

The first two ways conform to the law of nations that we presently follow.⁴ I would merely observe on the second that it is a risky enterprise on the conqueror’s part to want to give his laws and customs to the conquered people; there is no good in that, because one is capable of obeying in all sorts of governments. The last two ways⁵ conform to the law of nations among the Romans; on which, one can judge how much better we have become. Here homage must be paid to our modern times, to contemporary reasoning, to the religion of the present day, to our philosophy, to our mores. We know that conquest is an acquisition, and that the spirit of acquisition carries with it the spirit of preservation and use, not that of destruction.

When the authors of our public law, for whom ancient histories provided the foundation, have no longer followed cases strictly, they have lapsed into big mistakes.⁶ They have moved toward the arbitrary; they have presupposed among conquerors a right, I know not which one, of killing. This has made them draw consequences as terrible as the principle, and establish maxims that the conquerors themselves, when they have had the slightest sense, have never adopted. It is clear that, once the conquest is made, the conqueror no longer has the right to kill, because it is no longer for him a case of natural defense and of his own preservation.

What has made our political authors think this way is that they have believed the conqueror had the right to destroy the society; whence they have concluded that he had the right to destroy the men composing it, which is a consequence falsely drawn from a false principle. For it would not follow from the annihilation of the society that the men forming that society should also be annihilated. The society is the union of men and not the men themselves; the citizen may perish, and the man remain.

From the right to kill during conquest, political men have derived the right to reduce to servitude, but the consequence is as ill founded as the principle.

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One has the right to reduce a people to servitude only when it is necessary for the preservation of a conquest. The purpose of conquest is preservation. Servitude is never the purpose of conquest, but it is sometimes a necessary means for achieving preservation.

In this case, it is against the nature of the thing for this servitude to be eternal. It must be possible for the enslaved people to become subjects. Slavery is accidental to conquest. When, after a certain length of time, all the parts of the conquering state are bound to those of the conquered state by customs, marriage, laws, associations, and a certain conformity of spirit, servitude should cease. For the rights of the conqueror are founded only on the fact that these things do not exist and that there is a distance between the two nations, such that the one cannot trust the other.

Thus, the conqueror who reduces a people to servitude should always reserve for himself means—and these means are innumerable—for allowing them to leave it as soon as possible.⁷

These are not, adds M. Montesquieu, vague things here; these are principles, and our forefathers who conquered the Roman Empire put them in practice. They softened the laws that they had made in the heat, the activity, the impetuosity, the arrogance of victory; their laws had been hard, they made them impartial. The Burgundians, the Goths, and the Lombards always wanted the Romans to be the defeated people; the laws of Euric, of Gundobad, and of Rotharis made the barbarian and the Roman fellow citizens.

Instead of drawing such fatal consequences from the right of conquest, political men would have done better to speak of the advantages this right can sometimes confer on a vanquished people.⁸ They would have been more sensitive to these advantages if our law of nations were followed exactly and if it were established around the earth. Sometimes the frugality of the conquering nation has put it in position to leave the defeated people the necessities that their own prince had taken from them. One has seen states whose oppression by tax collectors was relieved by the conqueror, who had neither the commitments nor the needs of the legitimate prince.

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A conquest can destroy harmful prejudices, and, if one dares to say it, can put a nation under a better tutelary spirit. What good could the Spanish not have done for the Mexicans? And what harm did they not bring them by their destructive conquests? I pass over in silence the details on the rules of conduct that the various conquering states should observe for the preservation and the good of their conquests; they will be found in the illustrious author of the Spirit of the Laws.

There would be many remarks to make on conquest considered as a means of acquiring sovereignty; I must again limit myself to the main ones.⁹

(1) Conquest considered in itself is rather the occasion for the acquisition of sovereignty than the immediate cause of that acquisition. The immediate cause of the acquisition of sovereignty is always the consent of the people, either express or tacit. Without that consent, the state of war still exists between two enemies, and it cannot be said that one is obliged to obey the other; it is merely that the consent of the vanquished is extorted by the superiority of the victor.

(2) Every legitimate conquest assumes that the victor had just cause to make war on the vanquished; without this, conquest is not itself a sufficient title, for one cannot grab the sovereignty of a nation by the law of the strongest, and by seizing possession alone, as with something that belongs to no one. Let no one speak of the prince’s glory in making conquests. His glory is his pride; it is a passion, not a legitimate right. Thus, when Alexander waged war on the most distant peoples, peoples who had never heard of him, such a conquest was certainly no more just title to the acquisition of sovereignty than brigandage is a legitimate means of becoming rich. The number and quality¹⁰ of the persons does not change the nature of the action; the offense is the same, the crime is identical.

But if the war is just, the conquest is as well; for first of all, it is a natural result of the victory, and the defeated who surrenders to the victor is merely paying ransom for his life. Besides, since the defeated have engaged in an unjust war by their own fault, rather than granting the just satisfaction they owed, they are held to have tacitly consented in advance to the

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conditions that the victor might impose on them, provided these contain nothing unjust or inhuman.

What to think of unjust conquests and of submission extorted by violence? Can it bestow a legitimate right? Pufendorf (Bk. VII, ch. vii) responds that one must distinguish whether the usurper has changed a republic into a monarchy, or instead has dispossessed the legitimate monarch. In the latter case, he is absolutely obliged to return the crown to the one he has stripped of it, or to his heirs, until one can reasonably assume that they have renounced their pretentions. And this is what one always assumes when a substantial amount of time has flowed by without their having been willing or able to make an effort to recover the crown.

Thus, in relation to sovereignty, the law of nations admits of a kind of prescription between kings and free peoples; it is what the interest and tranquility of societies demands. The peaceful and sustained possession of sovereignty has to put it definitively beyond attack; otherwise there would be no end of disputes concerning realms and their limits, which would be a source of perpetual war. And there would hardly be a sovereign today who possessed authority legitimately.

It is in reality the people’s duty to resist the usurper at the beginning with all their might and to remain faithful to their sovereign. But if, despite all their efforts, their sovereign gets the worst of it and is no longer in a position to validate his law, they have no further obligations and can provide for their own preservation.

Peoples cannot do without government. And since they are not bound to expose themselves to perpetual war in order to uphold the interests of their first sovereign, they may render the right of the usurper legitimate by their consent. In these circumstances, the dispossessed sovereign should find consolation for the loss of his state as for a misfortune without remedy.

With regard to the first case, if the usurper has changed a republic into a monarchy, if he governs with moderation and equity, it is enough for him to have reigned peacefully for some time in order to give occasion to believe that the people are adjusting to his domination, and thus to erase what was vicious in the manner by which he had acquired it. This is what one may apply to the reign of Augustus, or if one does not want to apply it to him, one must nonetheless accept our maxim, that by the lapse of time,

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Usurpers of provinces become just princes by giving just laws. But if, on the other hand, the prince who has made himself master of the government of a republic drives it tyrannically, if he mistreats the citizens and oppresses them, one is then not obliged to obey him. In these circumstances, even the longest possession entails nothing else but a long continuation of injustice.

For the rest, nothing should better cure princes of the folly of distant usurpations and conquests than the example of the Spanish and Portuguese, and of all other less distant conquests—their uselessness, their uncertainty, and their reversals of fortune. Countless examples teach us how little these sorts of acquisition should be relied on. It happens sooner or later that a superior power uses the same means to take these acquisitions away from the one who has made them, or from his children. This is how France lost under John’s reign what Philip Augustus and St. Louis had conquered from the English, and how Edward III lost the conquests he had himself made in France. Then one finds one of Edward’s successors (Henry V) favorably restoring all of his predecessors’ losses, and the French in their turn recovering a short time afterward everything that prince had taken from them.¹¹

Conquests are easily made, because they are made with all one’s forces and because one profits from the opportunity. They are difficult to preserve, because they are defended with only a part of these forces. The aggrandizement of a conquering prince’s state reveals new areas by which it can be taken, and favorable conjunctures are chosen to this effect. It is the fate of heroes to ruin themselves conquering countries that they lose afterward. The reputation of their arms may extend their state, but the reputation of their justice would increase its strength more solidly. Thus, just as monarchs must have wisdom to legitimately increase their power, they must have no less prudence in order to limit it. Article by Ch. DE JAUCOURT