The History of the Common Law of England [25]
or Country, then the Victory is compleat, because none remains to call it in Question. But suppose they are beaten in one Battle, may they not rally again? Or if the greater Part be subdued, may not the lesser keep their Ground? Or if they do not at the present, may they not in the next Age regain their Liberty? Or if they be quiet for a Time, may they not as they have Opportunity, renew their Pretentions? And altho' the Victor, by his Power, be able to quell and suppress them, yet he is beholden to his Sword for it, and the Right that he got by his Victory before, would not be sufficient without a Power and Force to establish and secure him against new Troubles. And on the other Side, if those few subdu'd Persons can by Force regain what they once had a Pretence to, a former Victory will be but a weak Defence; and if it would, they would have the like Pretence to a Claim of Acquest by Victory over him, as he had over them. It seems therefore a difficult Thing to determine in what indivisible Moment this Victory is so compleat, that Jure Belli the Acquest of Dominion is fully gotten, and therefore Victors use to secure themselves against Disputes of that Kind, and as it were to under-pin their Acquest Jure Belli, that they might not be lost by the same Means, whereby they were gained by the Continuation of eternal Forces of Standing Armies, Castles, Garrisons, Munitions, and other Acts of Power and Force, so as thereby to over-bear and prevent an ordinary Possibility of the Prevailing of the conquered or subdued People, against the Conqueror or Victor. He that lays the Weight of his Title upon Victory or Conquest, rarely rests in it as a compleat Conquest, till he has added to it somewhat of Consent or Faith of the conquered, submitting voluntarily to him, and then, and not till then, he thinks his Title secure, and his Conquest compleat: And indeed, he has no Reason to think his Title can be otherwise secure; for where the Title is meerly Force or Power, his Title will fail, if the conquered can with like Force or Power over-match his, and to regain their former Interest or Dominion. Now this Consent is of Two Kinds, either Express'd, or Imply'd. An express Consent is, when after a Victory the Party conquered do expresly submit themselves to the Victors, either simply or absolutely, by Dedition, yielding themselves, giving him their Faith and their Allegiance; or else under certain Pacts, Conventions, Agreements, or Capitulations, as when the subdued Party, either by themselves, or by Substitutes, or Delegates by them chosen, do yield their Faith and their Allegiance to the Victor upon certain Pacts or Agreements between them; as for holding or continuing their Religion, their Laws, their Form of Civil Administration, &c. And thus, tho' Force were perhaps the Occasion of this Consent, yet in Truth 'tis Consent only that is the true proximate and fix'd Foundation of the Victor's Right; which now no longer rests barely upon external Force, but upon the express Consent and Pact of the subdu'd People, and consequently this Pact or Convention is that which is to be the immediate Foundation of that Dominion; and upon a &iligent Observation of Most Acquests gotten by Conquest, or so called, we shall find this to be the Conclusion of almost all Victories, they end in Deditions and Capitulations, and Faith given to the Conqueror, whereby oftentimes the former Laws, Privileges, and Possessions are confirmed to the Subdued, without which the Victors seldom continue long or quiet in their New Acquests, without extream Expence, Force, Severity and Hazard. 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