第20章 V. (3)

An implied Consent is, when the Subdued do continue for a long Time quiet and peaceable under the Government of the Victor, accepting his Government, submitting to his Laws, taking upon them the Offices and Employments under him, and obeying and owning him as their Governor, without opposing him, or claiming their former Right. This seems to be a tacit Acceptance of, and Assent to him; and tho' this is gradual, and possibly no determinate Time is stinted, wherein a Man can say, this Year, or this Month, or this Day, such a tacit Consent was compleated and concluded: For Circumstances may make great Variations in the Sufficiency of the Evidence of such an Assent; yet by a long and quiet Tract of peaceable Submission to the Laws and Government of the Victor, Men may reasonably conjecture, that the conquered have relinquished their Purpose of regaining by Force what by Force they lost.

But still all this is intended of a lawful Conquest by a Foreign Prince or State, and not an Usurpation by a Subject, either upon his Prince or Fellow Subject; for several Ages and Discents do not purge the Unlawfulness of such an Usurpation.

Secondly. Concerning the several Kinds of Conquests, and their Effects, as to the Alteration of Laws by the Victor. There seems to be a double kind of Conquest, which induces a various Consideration touching the Change of Laws, viz. Victoria in Regem & Populum, & Victoria in Regem tantum. The Conquest over the People or Country, is when the War is denounced by a Prince or State Foreign, and no Subject, and when the Intention and Denunciation of the War is against the King and People or Country, and the Pretention of Title is by the Sword, or Jure Belli; such were most of the Conquests of ancient Monarchs, viz.

The Assyrian, Persian, Graecian, and Roman Conquests; and in such Cases, the Acquisitions of the Victor were absolute and universal, he gain'd the Interest and Property of the very Soil of the Country subdued; which the Victor might, at his Pleasure, give, fell or arrent: He gain'd a Power of abolishing or changing their Laws and Customs, and of giving New, or of imposing the Law of the Victor's Country. But although this the Conqueror might do, yet a Change of the Laws of the conquered Country was rarely universally made, especially by the Romans: Who, though in their own particular Colonies planted in conquered Countries, they observed the Roman Law, which possibly might by Degrees, without any rigorous Imposition, gain and insinuate themselves into the conquered People, and so gradually obtain, and insensibly conform them, at least so many of them as were conterminous to the Colonies and Garrisons to the Roman Laws; yet they rarely made a rigorous and universal Change of the Laws of the conquered Country, unless they were such as were foreign and barbarous, or altogether inconsistent with the Victor's Government: But in other Things, they commonly indulged unto the conquered, the Laws and Religion of their Country upon a double Account, viz.

First. On Account of Humanity, thinking it a hard and oversevere Thing to impose presently upon the conquered a Change of their Customs, which long Use had made dear to them. And, 2dly. Upon the Account of Prudence; for the Romans being a wise and experienced People, found that those Indulgences made their Conquests the more easy, and their Enjoyments thereof the more firm, when as a rigorous Change of the Laws and Religion of the People would render them in a restless and unquiet Condition, and ready to lay hold of any Opportunity of Defection or Rebellion, to regain their ancient Laws and Religion, which ordinary People count most dear to them; (though at this Day the Indulgence of a Paganish Religion is not used to be allowed by any Christian Victor, as is observed in Calvin's Case in the Seventh Report;)and to give One Instance for all, it was upon this Account, That though the Romans had wholly subdued Syria and Palestina, yet they allow'd to the Inhabitants the Jews, &c. the Use of their Religion and Laws, so far forth as consisted with the Safety and Security of the Victor's Interest: And therefore, though they reserved to themselves the Cognizance of such Causes as concern'd themselves, their Officers or Revenues, and such Cases as might otherwise disturb the Security of their Empire, as Treasons, Insurrections, and the like; yet 'tis evident they indulged the People of the Jews, &c. to judge by their own Law, not only of some Criminal Proceedings, but even of Capital in some Cases, as appears by the History of the Gospels, and Acts of the Apostles.