members, whilst the society subsisted, were jointly bound to contribute towards the payment of the public debts, this obligation will cease when the society subsists no longer. But the destruction of the society, does not cancel any debts which the members of it had contracted, as individuals, upon their own private account. XIV. Á civil society continues the same, notwith- Change of constistanding any changes that are made in its civil constitu- tution does not tion. When a monarchy is established in a free state, change a state. or when, on the contrary, a popular form of government is introduced, instead of a monarchy, it is the constitutional compact that is changed, and not the social compact. In the language of the schools, the essence of a state consists in its form. An union of men, of free condition, by compact, for such purposes, as we have already had frequent occasion to mention, is the form of a state. This union is certainly essential to a state; for there can be no state, where no such union subsists, and wherever such union does subsist, it produces a state. Now, a change of the civil constitution of a state, is a change of form in the state. And this is sometimes urged to prove, that a change of the civil constitution of a state must be a change of the state itself: because a change of form is a change of essence. But the answer is obvious. A change of civil constitution is a change of the form of government in a state, and not a change of the essential form of the state itself. The several members of the state, notwithstanding the form of government is changed, still continue to be bound by compact, as they were before, jointly to pursue the purposes of civil union, and are still parties in the compact, by which the state was originally produced. From hence it follows, that a state neither loses any of its rights, nor is discharged from any of its obligations, by a change in the form of its civil government. XV. When two states unite themselves into one, by Some sorts of mutual agreement, so that the several parts or members changes in a state of each are admitted alike to the same, or to similar prido not destroy it. vileges, neither of them becomes a province to the other, and neither of them is destroyed by this union. The members of each continue to be joined to one another by social compact, as they were from the first, and their original compact is only changed in part, it is not made void. The only change that is made, consists in enlarging the terms of this compact on each side, so that the members of each state mutually receive the members of the other into the same body with themselves. Since both states thus continue in this united body, and neither of them ceases to exist, the rights and the obligations of both will remain, and will become the rights and obligations of the united body; that is, whatever rights belonged to each state separately, before they were united, will afterwards be the rights of the collective state; and the same obligations, that each state was under separately before, the collective state will be under afterwards. In monarchies, whether they are absolute or limited, two states may accidentally have the same head. But this unity of head does not join Grot. Lib. II. Cap. IX. § IX. Grot. Lib. II. IX. III. § VIII. the two states into one. Each state was originally formed by a different compact; and as long as no alteration is made in these compacts, either in whole or in part, the two states will continue to be two distinct bodies. They are not made one, merely by being in subjection to the same person: for he is called to govern each of them as a distinct state from the other; and the appointment of him to govern them as two distinct states, cannot make them one. Neither has he, by means of this appointment, an authority to unite them without their direct consent: for he is appointed, by each, to govern it as a distinct body; and such an appointment cannot imply a power of joining it to the other. Whilst the same person thus governs two states, one of them, as Grotius says, is not a province to the other, if he is called to govern each by two different appointments; whether these appointments are made by distinct elections, or by the distinct laws of succession, that are established in each. But if, by being appointed to govern one, he has an immediate right to govern the other, without the aid of any distinct election, or any distinct civil law of the latter, then the latter is a province to the former. Though a number of states should have formed themselves into a system or aggregate body, in order to carry on and secure some particular purpose, it does not follow, that they are united into one state. This union reaches no farther than the particular purpose for which it was formed: and the several states, after they are thus united, will continue to be as distinct from one another, in all other respects, as they were bfore. Such an union does, indeed, diminish the independency of each state: because, as far as the purposes of it extend, each state is no longer at liberty to choose and to act for itself, without the concur rence of the others. But this diminution of independency, since it af fects all of them equally, will not reduce any of them to the condition of provinces. When a state, by the general consent of the whole body, divides itself into two or more states, it does not cease. All the members of it, before this division was made, were united by a social compact into one body; and after it is made, all the members of each part continue to be united by the same compact. The division only changes this compact in part, and does not put an end to it. Before the state was divided, the compact was so general, as to comprehend the individual members of all the parts: but in making the division, all the members of each part agree to make it less general, and to include only themselves in it. But if the social compact, by which the whole state was once united, is only changed in part, and is not entirely destroyed, when the state is thus divided, the rights and obligations of the whole state will remain. If these rights and obligations have not been distributed amongst the several parts by special agreement, the rights must be enjoyed, and the obligations must be fulfilled by all the parts in common. Variable qualities XVI. Some qualities, which we usually speak of as if they belonged to a state, are derived to it from the qualities of its individual members, and are said to belong to the state, only because many of its members are endued with them. § Such of a state. * Grot. Lib. II. Cap. IX. § VIII. Grot. Lib. II. Cap. IX. § X. † Grot. Lib. I. Cap. III. § VII. qualities as these are variable; they may either be lost or acquired, though the state remains the same. The integrity or the valour of a state are qualities of this sort: the state loses its integrity, when the members of it become perfidious; and loses its valour, when they become cowardly and effeminate. But by means of a continued succession of members, united in the same social compact, the state itself, when it is perfidious and effeminate, is the same that it was before, whilst it was faithful and valiant. The same thing happens in other societies, that are continued by a succession of different parts, as well as in civil societies: though the societies continue to be the same, the qualities which they derive from the qualities of their members, may be changed. The same society, which is a learned one now, may hereafter be an illiterate one: the learning of the society is only the learning of its members; it will, therefore, lose this quality, whenever it is filled with illiterate members. Mankind are, indeed, very ready to claim a share in the credit of their predecessors: and for this reason, in speaking of any society, of which we are members, we are apt to take in the whole compass of its existence, and to call it a learned or a valiant society; if its members, in any former period of time, have been possessed of these good qualities; though few or none of them should be possessed of the same qualities now. But where the change has been made the other way, we seldom deceive ourselves in the same manner. When the society, to which we belong, is become learned or valiant, we look no farther back than the present times in speaking of it, and are apt to complain, if any one should so far impute the bad qualities of our predecessors to us, as to call it an illiterate, or an effeminate and cowardly society, only because it was such in the time of some of our predecessors. We e may reckon guilt amongst the other variable qualities of a state. A disposition to do harm belongs, primarily, to the individual members, and is no otherwise a quality of the body, than as the body derives this quality from its members. From hence it follows, that a state cannot justly be punished now, for any crime that it committed in some remote period of time. Where there is no guilt, the law of nature does not allow any punishment to be inflicted. No punishment, therefore, can justly be inflicted upon a state, after none of the members of it, that committed the crime, are left; because, in respect of that crime, the guilt of the state ceases, as soon as these members are gone. But the obligation of a state to make reparation for the damage that it has done, will continue, till reparation is made; though none of the persons, who were concerned in doing the damage, remain in it. Guilt, as it is a personal quality, ceases with the persons of the criminals, and does not descend to their successors. But the obligation to repair damage, affects the goods of those, who have done the damage, and consequently, descends to their successors along with the goods. an XVII. Nations, which are conquered in war, by a Conquest in foreign enemy, are sometimes reduced to provinces, or unjust war, proif they continue to be distinct societies, they are some- duces no effects of right. times compelled to receive such a form of civil government, or such civil governors, as the conqueror thinks fit to impose upon them. These are the effects, which conquest in war produces in fact, whether the war is just or not. But some of the plainest princi ples of the law of nature will serve to show us, that conquest, in an unjust war, produces no effects in right. Conquest is only the sup pressing of a force, which is used against us, by the use of a superior force on our side. But all unjust war is only the use of unjust force: and the law of nature gives no effects of right to unjust force, though it should happen to be superior to the force which is opposed to it. We might, perhaps, find reason to determine otherwise upon this question, if there was any purely positive law of nations, by which all public wars, or however all solemn wars were rendered externally just, as to their effects, and by which the captors might claim whatever they can get into their possession in such wars, whether they are internally just or not. But we have already proved, that there is no such law. And, certainly, the effects, which conquest, even in an unjust war, sometimes produces, in fact, may be accounted for, without supposing, that all nations have ever established such a law by general consent. The desire of power, or of profit, leads the conqueror to get whatever he can into his possession, and to keep whatever he has got ten. The vanquished nation submits to his will, because it is not able to make an effectual resistance. And if neutral states do not find, that their interest is concerned to stop the growing power of the conqueror, they are not likely to hazard their own safety, and the lives of their members, by engaging in the quarrel of the vanquished nation, and assisting it to repel, or to throw off his unjust usurpation. Thus the ambition or the avarice of one party, the weakness of another, and the caution of a third, will explain the events of conquest, without supposing, that any purely positive law of nations has given the conqueror a right to dominion, has obliged the vanquished state to submit to him, and has restrained all other states from affording it relief. What effects may war. XVIII. The same principles may be applied to conbe occasioned by quest universally; even though it is obtained in a just conquest in a just war. We cannot say, that a conqueror can have no right of civil dominion; merely because he comes in by force at first, and continues to hold his power by force afterwards. If he has such a right arising from some other cause, the law of nature will allow him to make use of force to support it, when any opposite force would otherwise hinder it from taking place, in fact, and will not vacate the right, merely because it is thus supported. But we certainly may say, that no such right can arise out of mere conquest.. Though the law of nature allows either states or individuals to bring their rights into execution by force, when they cannot be brought into execution by any other means; yet this law does not produce any right out of mere force, though it happens to be superior to the force which is opposed to it. But where a war is just, on the part of the conqueror, he has a right to require reparation of damages; and he has a farther right to punish the nation, that did the injury, which occasioned the war, if this injury proceeded from any public malice or hurtful disposition. And though mere conquest could give him no right of civil dominion over the vanquished nation, yet it may still be a question, whether such a right will not arise out of his right, to obtain reparation, and to inflict pun ishment. There is but little use to be made of some of the principal topics, from which Mr. Locke argues in this question. * He contends, that those members of a state, who do not actually concur in the wrong which is done by the governors of it, are neither liable to punishment, nor obliged to make reparation of damages; but that the punishment and the reparation ought, of right, to be confined to the governors, and to their direct and immediate assistants or abettors. As far as the members of a society are to be punished individually, we must necessarily grant, that this opinion is true. But in respect of any punishment, which is inflicted upon the body of the state, and affects the individual members no otherwise, than as they are parts of this body, and especially, in respect of the obligation to repair damages, the law of nations. looks upon all the members of it as accessories to the acts of their constitutional governors, and as abettors of their injustice. Mr. Locke contends farther, "that even those members of a state, who have directly concurred in the wrongs done by the civil governors of it, cannot forfeit the full property of their lands or other goods, either in the way of punishment, or in the way of reparation of damages: because nature, which willeth as much as may be the preservation of children, has given their children a right to their land or other goods." But the law of nature, as we have seen in another § place, knows nothing of any such indefeasible right in children to inherit the lands or other goods of their parents. Or even if we were to suppose, that the law of nature has established a right of inheritance, yet, as long as the parent lives, the children can have only an expectancy of succeeding to his goods, whether those goods are moveable or immoveable: because a right of inheritance is only a right of the heir to take such goods, as the ancestor leaves behind him at his death. Since the parent, therefore, will leave no goods behind him, if he has been justly disseized of them in his life-time, the child's right of inheritance will fail; that is, it will have no right to inherit any thing. Thus, the child's right of inheritance can never be urged to prove that the parent cannot justly be disseized of his goods, because we must first prove, that the parent cannot be so disseized, before we can establish the child's right of inheritance. But as no use can be made of these principles, so we have no occasion to use them, in showing, that a conqueror's demand to have his damages repaired, will not be sufficient to give him civil dominion over the vanquished state without the consent of the people. The damages must be unusually great, if the vanquished state is not able to satisfy the conqueror's just demands in money, or in moveable goods, or in both together. And if it is able to make him reparation by such payments as these, he has no farther claim to any property in the lands of its members, and much less to any right over their persons. Mr. | Locke, indeed, maintains, not only that the damages of an unjust war, will seldom be high enough to give the conqueror any demand upon the land of the vanquished people, but that it is impossible • Verse II. page 226. †See Book II. Chap. IX. § XIII. Verse II. page 226. § See Book I. Chap. VII. § IV. Verse II. page 228. |