# The Spirit of Laws (1758)/Book X

BOOK X. Of Laws in the Relation they bear to offensive Force.
CHAP. I. Of offenfive Force.
Book X. Chap. 1. & 2.OFFENSIVE force is regulated by the law of nations, which is the political law of each country considered in its relation to every other.
CHAP. II. Of War.
THE life of governments is like that of man. The latter has a right to kill in case of natural defence; the former have a right to wage war for their own preservation.
In the case of natural defence I have a right to kill, because my life is in respect to me, what the life of my antagonist is to him: in the same manner a state wages war, because its preservation is like that of any other being.
Among citizens the right cf natural defence does not imply a necessity of attacking. Instead of attacking they need only have recourse to proper tribunals. They cannot therefore exercise this right of defence, but in sudden cases, when immediate death would be the consequence of waiting for the ​Book X. Chap. 2. & 3.assistance of the laws. But among societies the right of natural defence carries along with it sometimes the necessity of attacking; as for instance, when one nation sees that a longer peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her own destruction.
From thence it follows, that small societies have oftener a right to declare war than great ones, because they are oftener in the case of being afraid of destruction.
The right therefore of war is derived from necessity and strict justice. If those who direct the conscience or councils of princes do not hold by this, all is undone: when they proceed on arbitrary principles of glory, conveniency, and utility; torrents of blood will overspread the earth.
But above all, let them not avail themselves of any such idle plea as the glory of the prince: his glory is nothing but pride; it is a passion and not a legitimate right.
It is true the same of his power might increase the strength of his government; but it might be equally increased by the reputation of his justice.
CHAP. III. Of the Right of Conquest.
FROM the right of war comes that of conquest; which is the consequence of that right, and ought therefore to follow its spirit.
The right the conqueror has over a conquered people is directed by four sorts of laws, the law of nature which makes every thing tend to the preservation of the species; the law of natural reason, ​Book X. Chap. 3.which teaches us to do to others what we would have done to ourselves; the law that forms political societies, whose duration nature has not limited; and in fine the law derived from the nature of the thing itself. Conquest is an acquisition; acquisition carries with it the spirit of preservation and use, and not of destruction.
A conquered nation is treated by the conqueror one of the four following ways. Either he continues to rule them according to their own laws, and assumes to himself only the exercise of the political and civil government; or he gives them a new political and civil government; or he destroys and disperses the society; or in fine, he exterminates the inhabitants.
The first way is conformable to the law of nations now followed; the fourth is more agreeable to the law of nations followed by the Romans: in respect to which I leave the reader to judge how far we have improved upon the ancients. We must give due praise to our modern times, to our present reason, to our religion, philosophy, and manners.
The authors of our public law, guided by ancient histories, without confining themselves to cases of strict necessity, have fallen into very great errors. They have adopted tyrannical and arbitrary principles, by supposing the conquerors to be invested with I know not what right to kill; from thence they have drawn consequences as terrible as very principle, and established maxims which the conquerors themselves, when possessed of the least grain of sense, never presumed to follow. It is a plain case that when the conquest is completed, the conqueror has no longer a right to kill, because he has no ​Book X. Chap. 3.longer the plea of natural defence and self-preservation.
What has led them into this mistake, is that they imagined a conqueror had a right to destroy the society; from whence they inferred, that he had a right to destroy the men that compose it; a wrong consequence from a false principle. For from the destruction of the society it does not at all follow, that the people who compose it ought to be also destroyed. Society is the union of men, and not the men themselves , the citizen may perish, and the man remain.
From the right of killing in case of conquest, politicians have drawn that of reducing to slavery; a consequence as ill grounded as the principle.
There is no such thing as a right of reducing people to slavery, but when it becomes necessary for the preservation of the conquest. Preservation, but never servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation.
Even in that case it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects. Slavery in conquests is an accidental thing. When after the expiration of a certain space of time all the parts of the conquering state are connected with the conquered nation, by custom, marriages, laws, associations, and by a certain conformity of spirit; there ought to be an end of the slavery. For the rights of the conqueror are founded intirely on the want of those very things, and on the estrangement between the two nations which prevents their confiding in each other.
​Book X. Chap. 3. & 4.A conqueror therefore who reduces the conquered people to slavery, ought always to reserve to himself the means (for means there are without number) of restoring them to their liberty.
These are far from being vague and uncertain notions. Thus our ancestors acted, those ancestors who conquered the Roman empire. The laws they made in the heat of fire, action, impetuosity, and the pride of victory, were afterwards softened; those laws were severe, but they rendered them impartial. The Burgundians, Goths, and Lombards would always have the Romans continue a conquered people; but the laws of Euirc, Gundebald, and Rotharis, made the Romans and Barbarians fellow-citizens.
CHAP. IV. Some Advantages of a conquered People.
INSTEAD of inferring such fatal consequences from the right of conquest, much better would it have been for politicians to mention the advantages which this very right may sometimes give to a conquered people; advantages which would be more sensibly, more universally felt, were our law of nations exactly followed, and established over all the earth.
Conquered countries are, generally speaking, degenerated from their original institution. Corruption has crept in, the execution of the laws has been neglected, and the government is grown oppressive. Who can question but such a state would be a gainer, and derive some advantages from the very conquest itself, if it did not prove destructive? ​Book X. Chap. 4.When a government is arrived to that degree of corruption as to be incapable of reforming itself, it would not lose much by being new moulded. A conqueror that enters triumphant into a country, where the monied men have by a thousand wiles and artifiees insensibly practised innumerable waves of usurping; where the miserable people, who grieve to see abuses grow into laws, live under oppression, and think they have no right to complain; a conqueror, I say, may make a total change, and then the masked tyranny will be the first thing exposed to his fury.
We have seen, for instance, countries oppressed by the farmers of the revenues, and eased afterwards by the conqueror, who had neither the engagements nor wants of the legitimate prince. Even the abuses have been often redressed without any interposition of the conqueror.
Sometimes the frugality of a conquering nation has enabled them to allow the conquered those necessaries, of which they had been deprived under a lawful prince.
A conquest may destroy pernicious prejudices, and lay, if I may presume to make use of the expression, the nation under a better genius.
What good might not the Spaniards have done to the Mexicans? They had a mild religion to impart to them? but they gave them a mad superstition. They might have set slaves at liberty; they made free men slaves. They might have undeceived them with regard to the abuse of human sacrifices; instead of that they destroyed them. Never should I have done, were I to recount all the good they did not, and all the mischief they did.
​Book X. Chap. 5, & 6.It is a conqueror's business to repair a part of the mischief he has committed. The right therefore of conquest I define thus: a necessary, lawful, and unhappy right, which leaves always an immense debt to discharge in order to clear the obligations of human nature.
CHAP. V. Gelon King of Syracause.
THE noblest treaty of peace ever mentioned in history is, in my opinion, that which Gelon made with the Carthaginians. He insisted upon their abolishing the custom of sacrificing their children. Glorious indeed! After having defeated three hundred thousand Carthaginians, he required a condition that was advantageous only to themselves, or rather he stipulated in favour of human nature.
CHAP. VI. Of Conquest made by a Republic.
IT is contrary to the nature of things, that in a confederate government one state should make any conquest over another, as in our days we have seen in Swisserland. In mixt confederate republics, where the association is between small republics and small monarchies, this is not so absurd.
Contrary it is also to the nature of things, that a democratical republic should conquer towns, which cannot enter into the sphere of its democracy. It is ​Book X. Chap. 6.necessary that the conquered people should be capable of enjoying the privileges of sovereignty, as was settled in the very beginning among the Romans. The conquest ought to be limited to the number of citizens fixt for the democracy.
If a democratical republic subdues a nation in order to govern them as subjects, it exposes its own liberty, because it intrusts too great a power to the officers sent into the conquered provinces.
How great would have been the danger of the republic of Carthage, had Hannibal made himself master of Rome? What would he not have done in his own country, had he been victorious, he who caused so many revolutions after his defeat?
Hanno could never have dissuaded the senate from sending succours to Hannibal, had he used no other argument than his own jealousy. The Carthaginian senate, whose wisdom is so highly extolled by Aristotle (and which has been evidently proved by the prosperity of that republic) could never have been determined by other than sensible reasons. They must have been stupid not to see, that an army at the distance of three hundred leagues would necessarily be exposed to losses that ought to be repaired.
Hanno's party insisted that Hannibal should be delivered up to the Romans. They could not at that time be afraid of the Romans; they were therefore afraid of Hannibal.
It was impossible, some will say, for them to imagine that Hannibal had been so successful. But how was it possible for them to doubt of it? Could ​Book X. Chap. 7, & 8.the Carthaginians, a people spread all over the earth, be ignorant of what was transacting in Italy? No: they were sufficiently acquainted with it, and for that reason they did not care to send supplies to Hannibal.
Hanno became more resolute after the battle of Trebia, after the battle of Thrasimenus, after that of Cannæ; it was not his incredulity that increased, but his fear.
CHAP. VII. The same Subject continued.
THERE is still another inconveniency in conquests made by democracies: their government is always odious to the conquered states. It is apparently monarchical: but in reality it is much more oppressive than monarchy, as the experience of all ages and countries evinces.
The conquered people are in a melancholy situation; they neither enjoy the advantages of a republic, nor those of a monarchy.
What has been here said of a popular state, is applicable to aristocracy.
CHAP. VIII. The same Subject continued.
WHEN a republic therefore keeps another nation in subjection, it should endeavour to repair the inconveniencies arising from the nature of its situation, by giving it good laws both for the political and civil government of the people.
​Book X. Chap. 8, & 9.We have an instance of an island in the Mediterranean, subject to an Italian republic; whose political and civil laws in respect to the inhabitants of that island were extremely defective. The act of amnesty, by which it ordained that no one should be condemned to a bodily punishment in consequence of the private knowledge of the governor, ex informata conscientia, is still recent in every body's memory. There have been frequent instances of the people's petitioning for privileges: here the sovereign grants only the common right of all nations.
CHAP. IX. Of Conquests made by a Monarchy.
IF a monarchy can for a long time subsist before it is weakened by its increase, it will become formidable; and its strength will remain intire, while pent up by the neighbouring monarchies.
It ought not therefore to aim at conquests beyond the natural limits of its government. As soon as it has passed these limits, it is prudence to stop.
In this kind of conquest things must be left as they were found; the same courts of judicature, the same laws, the same customs, the same privileges; there ought to be no other alteration than that of the army and of the name of the sovereign.
​Book X. Chap. 9, & 10.When a monarchy has extended its limits by the conquest of some neighbouring provinces, it should treat those provinces with great lenity.
If a monarchy has been a long while endeavouring at conquests, the provinces of its ancient demesne are generally ill-used. They are obliged to submit both to the new and to the ancient abuses; and to be depopulated by a vast metropolis that swallows up the whole. Now if after having made conquests round this demesne, the conquered people were treated like the ancient subjects, the state would be undone; the taxes sent by the conquered provinces to the capital would never return; the inhabitants of the frontiers would be ruined, and consequently the frontiers would be weaker; the people would be disaffected; and the subsistence of the armies designed to act and remain there, would become more precarious.
Such is the necessary state of a conquering monarchy; a shocking luxury in the capital; misery in the provinces somewhat distant; and plenty in the most remote. It is the same with such a monarchy as with our planet; fire at the center, verdure on the surface, and between both a dry, cold, and barren land.
CHAP. X. Of one Monarchy that subdues another.
SOMETIMES one monarchy subdues another. The smaller the latter, the better it is checked by fortresses; and the larger it is, the better it is preserved by colonies.
CHAP. XI. Of the Manners of a conquered People.
Book X. Chap. 11, & 12.IT is not sufficient in those conquests to let the conquered nation enjoy their own laws; it is perhaps more necessary to leave them also their manners, because people generally know, love, and defend their manners better than their laws.
The French have been driven nine times out of Italy, because, as historian say, of their insolent familiarities with the fair sex. It is too much for a nation to be obliged to bear not only with the pride of conquerors, but with their incontinence and indiscretion; these are, without doubt, most grievous and intolerable, as they are source of infinite outrages.
CHAP. XII. Of a Law of Cyrus.
FAR am I from thinking that a good law which Cyrus to oblige the Lydians to practise none but mean or infamous professions. It is true, he directed his attention to what was of the greatest impotence; he thought of revolts, and not of invasions: but invasions will soon come; for the Persians and Lydians unite and corrupt each other. I would therefore much rather support by laws the simplicity and rudeness of the conquering nation, than the effeminacy of the conquered.
Aristodemus, tyrant of Cumæ, used all his endeavours to banish courage and to enervate the minds of youth. He ordered that boys should let ​Book X. Chap. 12, & 13.their hair grow in the same manner as girls; that they should deck it with flowers, and wear long robes of different colours down to their heels; that when they went to their masters of music and dancing, they should have women with them to carry their umbrello's perfumes, and fans, and to present them with combs and looking glasses whenever they bathed. This education lasted till the age of twenty; an education that could be agreeable to none but a petty tyrant, who exposes his sovereignty to defend his life.
CHAP. XIII. Alexander.
ALEXANDER made a surprizing conquest. Let us see how it was conducted; and since enough has been said by other writers of his valour, let us mention something concerning his prudence.
The measures he took were just. He did not set out till he had compleated the reduction of Greece; he availed himself of this reduction for no other end than for the execution of his enterprize; and he left nothing, by which he could be annoyed, behind him. He began his attack against the maritime provinces; he made his land forces keep close to the sea coast that they might not be separated from his fleet; he made an admirable use of discipline against numbers; he never wanted provisions; and if it be true that victory gave him every thing, he, in his turn, did every thing to obtain it.
In this manner he carried on his conquests; let us now see how he preserved them.
​Book X. Chap. 13.He opposed those who would have had him treat the Greeks as masters, and the Persians as slaves. He thought only of uniting the two nations, and of abolishing the distinctions of a conquering and a conquered people. After he had compleated his victories, he relinquished all those prejudices that had helped him to obtain them. He assumed the manners of the Persians, that he might not afflict them too much by obliging them to conform to those of the Greeks. It was this humanity which made him shew so great a respect for the wife and mother of Darius; this that made him so continent; this that caused his death to be so much lamented by the Persians. What a conqueror! he is lamented by all the nations he has subdued! What an usurper! at his death the very family he has cast from the throne, is all in tears. These were the most glorious passages in his life, and such as history cannot produce an instance in any other conqueror.
Nothing consolidates more a conquest than the union formed between the two nations by marriages. Alexander chose his wives from the nation he had subdued; he insisted on his courtiers doing the same; and the rest of the Macedonians followed the example. The Franks and Burgundians permitted those marriages; the Visigoths forbad them in Spain and afterwards allowed them. By the Lombards they were not only allowed but encouraged. When the Romans wanted to weaken Macedonia, they ordained that there should be no intermarriages between the people of different provinces.
​Book X. Chap. 13, & 14.Alexander, whose aim was to unite the two nations, thought fit to establish in Persia a great number of Greek colonies. He built therefore a vast multitude of towns; and so strongly were all the parts of this new empire cemented, that after his decease, amidst the trouble and confusion of the most frightful civil wars, when the Greeks had reduced themselves, as it were, to a state of annihilation, not a single Province of Persia revolted.
To prevent Greece and Macedon from being too much exhausted, he sent a colony of Jews to Alexandria; the manners of those people signified nothing to him, provided he could be sure of their fidelity.
The kings of Syria, abandoning the plan laid down by the founder of the empire, resolved to oblige the Jews to conform to the manners of the Greeks; a resolution that gave the most terrible shocks to their government.
CHAP. XIV. Charles XII.
THIS prince, who depended intirely on his own strength, hastened his ruin by forming designs that could never be executed but by a long war; a thing which his kingdom was unable to support.
It was not a declining state he undertook to subvert, but a rising empire. The Ruffians made use of the war he waged against them, as of a military school. Every defeat brought them nearer to victory; and losing abroad, they learnt to defend themselves at home.
​Book X. Chap. 14.Charles in the deserts of Poland imagined himself master of the universe: here he wandered, and with him in some measure wandered Sweden; whilst his capital enemy acquired new strength against him, locked him up, made settlements along the Baltic, destroyed or subdued Livonia.
Sweden was like a river whose waters are cut off at the fountain head in order to change its course.
It was not the affair of Pultova that ruined Charles. Had he not been destroyed at that place, he would in another. The casualties of fortune are easily repaired; but who can be guarded against events that incessantly arise from the nature of things?
But neither nature nor fortune were ever so much against him, as he himself.
He was not directed by the actual situation of things, but by a kind of model he had formed to himself; and even this he followed very ill. He was not an Alexander; but he would have been Alexander's belt soldier.
Alexander's project succeeded because it was prudently concerted. The bad success of the Persians in their several invasions of Greece, the conquests of Agesilaus and the retreat of the ten thousand had shewn to demonstration the superiority of the Greeks in their manner of fighting and in the arms they made use of; and it was well known that the Persians were too proud to be corrected.
It was no longer possible for them to weaken Greece by divisions: Greece was then united under one head, who could not pitch upon a better method of renderivg her insensible of her servitude, than by flattering her vanity with the destruction of her hereditary enemy, and with the hopes of the conquest of Asia.
​Book X. Chap. 14, & 15.An empire cultivated by the most industrious nation in the world, that tilled the lands through a principle of religion, an empire abounding with every conveniency of life, furnished the enemy with all necessary means of subsisting.
It was easy to judge by the pride of those kings, who in vain were mortified by their numerous defeats, that they would precipitate their ruin by being so forward to venture battles; and to imagine that flattery would never permit them to doubt of their grandeur.
The project was not only wise, but wisely executed. Alexander in the rapidity of his conquests, even in the fire of his passions, had, if I may presume to use the expression, a slash of reason by which he was directed, and which those who wanted to make a romance of his history, and whose minds were more debauched than his, could not conceal from posterity.
CHAP. XV. New Methods of preferring a Conquest.
WHEN a monarch has conquered a large country, he may make use of an admirable method, equally proper for moderating despotic power, and for preserving the conquest; it is a method practiced by the emperors of China.
In order to prevent the conquered nation from falling into despair, the conquerors from growing insolent and proud, the government from becoming military, and to contain the two nations within duty; the Tartar family now on the throne of China, has ordained that every military corps in the ​Book X. Chap. 15, & 16.provinces should be composed half of Chinese and half of Tartars, to the end that the jealousy between the two nations may keep them within bounds. The courts of judicature are likewise half Chinese, and half Tartars. This is productive of several good effects. 1. The two nations keep one another in awe. 2. They both preserve the civil and military power, and one is not destroyed by the other. 3. The conquering nation may spread itself without being weakened and lost. It is likewise enabled to resist civil and foreign wars. The want of so wise an institution as this, has been the ruin of almost all the conquerors that have existed.
CHAP. XVI. Of Conquests made by a despotic Prince.
WHEN a conquest happens to be vastly large, it supposes a despotic power: and then the army dispersed in the provinces is not sufficient. There should be always a trusty body of troops around the prince, ready to fall instantly upon any part of the empire that might chance to waver. This military corps ought to awe the rest, and to strike terror into those who through necessity have been intrusted with any authority in the empire. The empire of China has always a large body of Tartars near his person, ready upon all occasions. In India, in Turky, in Japan, the prince has always a body-guard, independent of the other regular forces. This particular corps keeps the dispersed troops in awe.
CHAP. XVII. The same Subject continued.
Book X. Chap. 17.WE have observed that the countries subdued by a despotic monarch, ought to be feodary. Historians exhaust themselves in extolling the generosity of those conquerors who restored to the throne the princes they had vanquished. Extremely generous then were the Romans, who made kings in all parts, in order to have instruments of slavery. A proceeding of that kind is absolutely necessary. If the conqueror intends to preserve the conquered country, neither the governors he sends will be able to contain the subjects within duty, nor he himself the governors. He will be obliged to strip his ancient patrimony of troops, in order to secure the new. All the miseries of the two nations will be common; the civil war of one will communicate itself to the other. On the contrary if the conqueror restores the legitimate prince to the throne; he will have a necessary ally, by the junction of whose forces, his own will be augmented. We have a recent instance of what has been here said in Shah Nadir, who conquered the Mogul, seized his treasures, and left him the possession of Indostan.
* ↑ See the Code of Barbarian Laws.
* ↑ See M. Barbey rac's collection Art 112.
* ↑ With regard to Tockenburg.
* ↑ He was at the head of a faction.
* ↑ Hanno wanted to deliver Hannibal up to the Romans, as Cato wanted to deliver up Cæsar to the Gauls.
* ↑ Of the 18th of October 1738, printed at Genoa, by Franchelly. Vietiamo al nollre general governatore in detta isola di condannare in avvenire solamente ex informata conscientia persona alcuna nationale in pena afflittiva; potra bensi arressare ed incarcerare le personne che gli saranno sospette, salvo di renderne pei anoi conto sollecitamonre. Art. 6. See the Amsterdam Gazette of the 23d of September 1738.
* ↑ See Puffendorf's universal History.
* ↑ Dionys. Halicar I. 7.
* ↑ This was Aristotle's advice. Plutarch's Morals, of the fortune and virtue of Alexander.
* ↑ See the Law of the Burgundians, tit. 12. art. 5.
* ↑ See the Law of the Visigoths, book 3. tit. 1 § 1. which abrogates the ancient law that had more regard, it says, to the difference of nation than to that of people's conditions.
* ↑ See the law of the Lombards book 2. tit. 7. § 1. & 2.
* ↑ Ut haberent instrumenta servitutis & reger.