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175 u chapter 20 u On Conquest and Patrimonial Kingdoms1 [Pufendorf had argued that, while all legitimate governments must be derived from the consent of subjects, this consent is not always elicited in the same manner. For subjects are sometimes forced to consent to a government that is imposed upon them by a conqueror following a war. The subjects of an occupying power are justly required to consent to such a government which has, after all, spared the lives of the conquered people. Moreover, the subjugated people must have understood that in making war they had risked their lives and fortunes at the gaming table of Mars. And they had therefore consented tacitly to whatever conditions might issue from the war. Carmichael offers the following observations on this argument:] Many opinions are current on this question of the acquisition of power or government. They need to be carefully scrutinized. It has been established above2 that whatever is owed by the vanquished even to a just victor, beyond the fact that he had given cause for war, is owed either as compensation or as a guarantee for the future or as punishment. To begin with the last, only those who actually do harm are liable to punishment; for Grotius has rightly noted that the civil association between ruler and citizens does not entail that innocent citizens may be punished in the human court for the crimes of the ruler (II.XXI.17; see also III.XI.2). But in the case of an unjust war, its being waged by a state usually means that it is waged by the sovereign and the soldiers under his command. The vast majority of citizens have made no contribution at all, whether of wealth or counsel, and 1. From the notes to bk. II, ch. 10, “On the Ways of Acquiring Power, Particularly Monarchical.” 2. See above, pp. 139–42. 176 natural rights are therefore totally exempt from punishment, however wickedly the war was waged. The first justification, therefore, which Pufendorf gives for the acquisition of power by force, that if the victor had wished to make strict use of the rights of war, he could have taken the lives of the vanquished, is applicable only to a small portion of the conquered state—on the assumption that one understands by the strict rights of war not what is done by inhuman and unjust victors, but what may be done rightfully. For once enemies are defeated, the only justification for taking away their lives is as punishment, in the same way that in the state of nature only physical punishments are applicable. I omit to inquire whether the common soldiers deserve any mitigation of punishment on the ground of justice, because they were lured or even pressed into war by the authority of the ruler, and because specious pretexts often cloak unjust wars. I also ignore the question whether they have a worthy conception of civil government who think that men who have deserved extreme penalties should be compelled to enter military service as their punishment. On compensation for loss, the following seems certain. (1) It rarely, if ever, happens that the loss which the inhabitants of a well-cultivated territory wrongly inflict on another people or prince equals the value of any distinct part of the region which the wrongdoers possess. It also rarely happens that the aggressor is not both willing and able, when it has to make the choice, to compensate for the damage otherwise than by ceding any part of its territory. In which case the injured party has no excuse for holding this territory, much less for suppressing the liberty of innocent citizens. (2) Whatever is due to the victor as compensation for loss, need not (it seems) be paid by innocent citizens in a way that would also deprive them of the continued use and enjoyment of the civil government for whose sake they are assumed to have incurred the obligation. For the only justification of the obligation by which citizens need to make restitution for public wrongdoing seems to be the same as that which in private law underlies noxal actions and the action de pauperie.3 Thus it would be considered fair 3. Noxal actions and actions de pauperie are actions in Roman law for compensation for damage committed by slaves and animals, respectively; essentially, the owner of the slave or animal either made good the loss or surrendered him or his services...

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