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.
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.
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 through 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 the reservation of the right of the innocent wife and children.
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 the estate he possessed: for example, I in the state of nature (and all commonwealths are in the state of nature one with another) have injured another man, and refusing to give satisfaction 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 assisted in it. I could not forfeit their lives; they were not mine
