Conquest : Yves Winter

Ofer Wolberger / Lunch Time, Jordanville, NY, 2003
Ofter Wolberger / Lunch Time, Jordanville, NY, 2003

Conquest : Yves Winter

In 1542, the Spanish Dominican priest Bartolomé de Las Casas published his Short Account of the Destruction of the Indies, in which he describes the horrors and atrocities of the conquest of the Americas. Las Casas had arrived in Santo Domingo in 1502 and witnessed the invasion and conquest of the New World. He accompanied the conquistador Diego Velázquez, and in his Short Account he describes the massacres of Velázquez in Cuba, of Hernán Cortés in Mexico, and of Francisco Pizarro in Peru. According to Las Casas, the conquistadors engaged not only in wholesale slaughter of the predominantly peaceful indigenous population but took pleasure in the most gruesome mutilations and torture. He describes how the conquerors would kill and maim the civilian population or burn them alive; how they would kidnap and abduct entire groups into slavery and bondage; and how they would drench the land in a sea of blood and misery.

Among the things that stand out in Las Casas’s descriptions is that he does not use the term ‘conquest’. Indeed, Las Casas explicitly refuses to call the seizure and subjugation of the Americas by the name ‘conquest’. He refers to “massacres” and “atrocities,” yet he insists that, even though they typically “go under the name of ‘conquests,’”1 the term should not be used to describe the slaughter and dispossession of an innocent population—“gentle lambs” upon whom “the Spanish fell like ravening wolves . . . or like tigers and savage lions.”2 The term conquest, he writes, is “abusive, improper, and infernal.”3 But why this odd rejection of the idiom of conquest? What is it about the term ‘conquest’ that makes it, in Las Casas’ view, inappropriate and abusive? Why is it significant to mark the butchery and massacres of the Spaniards in the New World as different from conquest? What does ‘conquest’ signify, what ideological work does it perform, such that Las Casas is so concerned to distance the “unjust, cruel, [and] bloody” war in the West Indies from this concept?4

Forty years later, in 1585, the English writer Richard Hakluyt characterized the three objectives of the colony of Virginia as “to plant Christian religion, to traffic, to conqueror.”5 Just as Las Casas was a fierce critic of the Spanish conquest, Hakluyt was a lifelong promoter of its English counterpart. He advocated English settlement in North America, serving as director of the Virginia Company and as adviser to the East India Company. For Hakluyt and other 16th century English colonialists, conquest was a spiritual journey: it was connected with an evangelizing mission, with commerce and trade, and it consisted in imposing order onto chaos and in consecrating a New Jerusalem. For 16th and 17th century English settlers, conquest amounted to subjugating the American wilderness, triumphing over the fierce and savage forces they encountered in the form of untamed nature and hostile Indian tribes. The trope of the ferocious wilderness allowed conquest to become mythologized as an organizing and generative force, one through which generations of Puritans came to define their relationship to the New World.6

Las Casas and Hakluyt occupied opposite perspectives in the emerging European discourse on conquest. Yet despite their diverging political, theological, and moral views, they share a set of common assumptions about the concept of conquest. Neither of them pretends that the term ‘conquest’ is a neutral descriptor. Las Casas’ rejection and Hakluyt’s embrace of the terminology of ‘conquest’ indicates that starting in 16th century European legal and political discourse, the word ‘conquest’ was not merely a label that designated a practice of acquiring territory, of defeating or overthrowing a political order, and of subjugating a population. Surely, if this is all that ‘conquest’ had meant, Las Casas would not have been so adamant to deny it. Instead, conquest was intimately tied not only to the empirical fact of military defeat and subjection, but to a legal and moral claim, to a legal title to rule.7

Conquest was a legitimate mechanism of acquiring territory and subjugating populations from the 16th through the 20th century. But how did a type of political violence that forcibly establishes a relation of domination become a juridical institution, codified in early modern European law and widely recognized as a valid mode of acquisition? Historically, this process has to be contextualized in a larger story that precedes the European colonization of the New World by at least 500 years. As the historian Robert Bartlett has shown, the story of conquest and colonization does not begin with the European discovery of the Americas but with the expansion of Latin Christendom in the High Middle Ages. In Bartlett’s account, the practices, discourses, and cultures of conquest were constitutive of the expansion and consolidation of Latin Christianity throughout Southern Italy and Sicily, the Iberian peninsula, Eastern Europe, Scandinavia, the Baltic, and the eastern Mediterranean.8 “The European Christians who sailed to the coasts of the Americas, Asia and Africa in the fifteenth and sixteenth centuries came from a society that was already a colonizing society. Europe, the initiator of one of the world’s major processes of conquest, colonization, and cultural transformation, was also the product of one.”9 According to Bartlett, medieval Europe developed not only an “expansionary mentality” but an entire “terminology and rhetoric of expansionary violence” that celebrates the heroism and mythologizes the violence and brutality of conquest.10 Most importantly, the conquerors—whether it was the Norman conquerors of Sicily or the crusaders in the eastern Mediterranean—derived their political rights and authority directly and explicitly from the fact of conquest.11 Even though conquest was not yet formalized in any juridical sense, by the 11th and 12th centuries, it was already more than merely the rule of force. Conquest was seen as a foundational moment, a political and legal caesura that ruptures customary rights and obligations and institutes a new order.

By the time of Las Casas and Hakluyt, the foundational violence of conquest was in the process of becoming consolidated and codified as a juridical institution in the emerging system of public international law—the Jus Publicum Europaeum. The consolidation of conquest as a recognized juridical mechanism of acquisition and subjugation also poses a series of conceptual problems, among them what I call the paradox of conquest. Formulated most poignantly by Machiavelli, the paradox of conquest concerns the tendency of conquest to negate its own principle. To the extent that a successful conquest involves not only the violent overthrow of an existing order but also the imposition of a new and stable order, it contains two contradictory elements: a vector of disruption and a vector of order. If conquest is a foundational violence that interrupts political continuity and that suspends a legal order, how can it simultaneously generate a new stable order?

The story of the consolidation of conquest as a juridical institution (parts of which I will tell in what follows) spans roughly the 16th through the 18th century—from the early colonial period, an age, as Benjamin Constant would later write, defined by the “spirit of conquest” to the Enlightenment’s disavowal of conquest.12 It is during this time that conquest is debated most fiercely, and that it reaches the peak of theoretical development and complexity. The proliferation of conquest as a mode of colonial expansion in the 16th and 17th centuries introduced a new set of questions into European political discourse and decisively shaped the political and legal imaginary. In the early decades of the 16th centuries, the colonization of the New World inaugurated a string of debates concerning the validity of conquest and the rights and obligations that follow from it, setting in motion a jurisgenerative process that fundamentally shaped the modern era and determined, for 400 years, the structure of European international law.13

Colonialism did not inaugurate conquest. But, as I will argue, it introduced a split in the theoretical problems and discourses of conquest. From the late 16th and early 17th century on, the genealogy of conquest is divided into two separate (though at times intersecting) branches: one that concerns the colonial world and that focuses on the normative question of how to legitimate European conquest and colonization; and another that concerns political authority, more specifically, the problem of instituting and transferring sovereignty and political authority. This second branch emerged in Stuart England, in the context of the English civil war, where conquest becomes a political trope through which the foundation of sovereignty and royal authority are debated. Two different discourses: one that examines the nature of subjects that may be conquered and colonized as well as the reasons and grounds on the basis of which this colonization is legitimate; another that specifies the nature of conquest as a political event, as an interruption that topples a political order, disrupts its continuity, and introduces new rights and obligations. While these two discourses do not exactly introduce two different concepts of conquest, they focus largely on separate aspects. Schematically put, the colonial discourse deals with the normative grounds of conquest whereas the European discourse pertains to its normative implications.

The Paradox of Conquest: Machiavelli

Nobody expressed the idea that force and conquest lies at the heart of political power and authority more distinctly than Niccolò Machiavelli. Machiavelli considered conquest a fundamental political practice, both for monarchies and republics. The desire to acquire, he says, is “a natural and ordinary thing” resulting from a thirst for honor and glory.14 For Machiavelli conquest derives from the dynamics of political power, irrespective of whether such power is centralized in the hands of a single monarch or distributed through the institutions of a republic. Conquest, in other words, does not result merely from princely ambition or caprice: it is a structural element of a competitive political field.15

Machiavelli avoids the term ‘conquest’ (conquisto) or its lexical derivatives (conquistare, riconquistare), even though these terms are in use in the vernacular Italian at the time of his writing.16 Instead, he prefers the terms acquistare, to ‘acquire’, to gain possession or, in a more military valence vincere, with its connotation of victory and defeat. By employing the vocabulary of acquisition, Machiavelli highlights the original sense of the word ‘conquest’ in medieval law: etymologically, ‘conquest’ can be traced back to the late Latin conquaerere, to acquire, from which feudal law derived conqaestus, denoting the acquisition or purchase of an estate that is not inherited. Thus old English, Scottish, and Norman law distinguished between the acquisition of an estate through inheritance or through conquest, and the conquereur was the first purchaser of an estate.17 As Blackstone will write, two centuries later, “What we call purchase, perquisitio, the feudists called conquest, conquaestus, or conquisitio: both denoting any means of acquiring an estate out of the common sense of inheritance.”18 While this broad sense of conquest as any kind of acquisition that does not proceed by succession has largely disappeared from today’s political and legal discourse, the dichotomy between ‘natural’ and ‘artificial’ ways of acquiring power remains one of the structuring metaphors for figuring political continuity and change.

Couched in the terminology of acquisition, Machiavelli presents the first self-consciously technical theory of conquest, focusing on the political mechanics of conquest, the criteria for success, the analysis of possible tactics and procedures, instruments, and maneuvers. It is a technical theory, because unlike his contemporary, Las Casas (or for that matter Hakluyt), Machiavelli rejects the normative implications of conquest and the implicit distinction between legitimate and illegitimate modes of acquisition and subjection. It may be for that very reason that Machiavelli avoids the charged terminology of conquest and instead opts for the vocabulary of acquisition. His theory of conquest is presented in the first eleven chapters of The Prince and the second book of the Discourses. It dissects conquest into two temporally and politically distinct problems: founding a state and maintaining it. A successful conquest, Machiavelli writes, consists not only in a military victory but in building and constructing the foundations for political authority, in other words in creating a political form that embodies the conditions for reproducing effective domination.

The acquisition of power, Machiavelli informs his reader in the very first chapter, occurs either by heredity or by conquest. The hereditary or “natural prince” has less cause and less necessity to conquer, “hence it is fitting that he be more loved.”19 The conqueror, by contrast, cannot count on such love. The surplus of love a “natural” (i.e. non-conquering) prince commands is his stock of legitimacy, a political resource the new prince lacks and for which the conqueror needs to find an equivalent. The problem faced by conquerors is thus not only to acquire territory but to create this equivalent, either by inducing love or fear or by engendering a fictional memory that can serve as a substitute for the lack of lineage. A new prince, in short, must “appear ancient.”20

By situating the problem of conquest in the context of establishing political legitimacy, Machiavelli formulates the political paradox faced by conquerors: conquest is fundamentally antithetical to political stability. Conquest is an event that interrupts a political continuity; it suspends forms of political legitimacy based on custom and tradition or indeed modes of legitimacy based on formal legal authority. Yet to the extent that a conqueror desires to hold on to the acquired spoils, conquest is predicated on a return to the state of stability and customary legitimacy that preceded it. The paradox of conquest is that a successful conquest is one that negates its own animating principle. In order to prevent future conquests, successful conquerors must find a way to represent their conquest without sanctioning the principle of violent change as a permissible way to transfer political authority.

Machiavelli’s solution to the paradox of conquest is found in his admonition that the conqueror “appear ancient.” Conquest, in other words, is irreducible to brute force; it involves the production of appearances, of signs, and of symbols. Machiavelli would not have been surprised by recent scholarship on the conquest of the Americas that emphasizes the significance of symbolic and semantic aspects of conquest. In different ways, Tzvetan Todorov and Patricia Seed have pointed to the significance of signs and ceremonial practices, both as a way of overwhelming the enemy and as a way of generating authority deemed legitimate.21 According to Seed, the production of legitimacy was deeply bound up with words, gestures, and ceremonies that accompanied conquests, whether it be erecting crosses, planting flags, emblems, and insignia; uttering certain ritualistic pronouncements; or measuring, counting, assessing, and mapping the territory, the population, and the geography.

The example of the Spanish Requerimiento of 1513 captures this problem perhaps best. The Requerimiento was a juridical document conquistadors were required to read in the presence of a notary before attacking Indians.22 It outlined the Spanish claim to the New World and specified the political obligations of Indian subjects toward the Spanish Crown. Only once the Requerimiento had been duly promulgated and the Indians had thus been informed of their obligations could the conquistadors lawfully engage in hostilities. Yet to the extent that the document relied on legal, political, and theological concepts that would have been meaningless to Indians, that it was in Spanish, a language which Indians did not understand, and that it was frequently read at night to sleeping villages, the Requerimiento was not intended to communicate anything to Indians but instead functioned as a ceremonial protocol for conquest.23As the case of the Requerimiento indicates, a conqueror must find a way to transition from the event of the violent appropriation to a stable political order, and that transition inevitably takes place in symbolic terms. Conquest, in other words, is embedded in a set of formal or informal symbolic and ceremonial practices, and these practices are crucial in generating the political legitimacy that allows a conqueror to unravel the paradox of conquest.

If the paradox of conquest can only be resolved within the register of the symbolic, then the prince to whom Machiavelli’s recommendations are ostensibly directed must perhaps be interpreted not as the empirical addressee but as a literary trope for conquest. Recall that the prince must conquer not only territory but also lady fortuna, who, Machiavelli tells his readers, prefers audacity to prudence and must thus be won over though a combination of force and passion.24 By representing fortune as a woman, Machiavelli, perhaps more than any other modern political theorist in the Euro-Atlantic tradition, situates the political problem of conquest squarely in the field of desire.25 The desire that animates conquest is not only sexually charged but decisively gendered, operating within a phallocentric economy of male heterosexuality. In this economy, the objects of conquest are valorized through the possibility of exchange.26 Thus Machiavelli’s comedy Mandragola figures conquest as an elaborate plot by a young Italian dandy to get Lucrezia, a beautiful but married woman, into bed. In the play, Lucrezia surrenders to her conqueror by accepting him as her lord and master: “I take you then for lord, master, guide; you are my father, you are my defender.”27

It is no coincidence that the language of conquest is applied both to the battlefield and the bedroom and that the political terminology of mastery and lordship inserts itself into a comedy about seduction and wife-stealing. There is a continuity, Machiavelli implies, between the “burning desire” for Lucrezia28 and the “natural and ordinary” desire that animates political conquest.29 But it is not just the affective dimension of sexual and political conquest that is homologous. Both require a mix of force and fraud, the two types of virtù embodied respectively by the lion and the fox, which Machiavelli extols in chapter XVIII of The Prince. Both also require a symbolic ratification of the conquest—be it in the form of the parodied marriage vows uttered by Lucrezia or by way of the equivalent for the surplus of love that the hereditary prince commands. Akin to the ceremonies of possession in the New World chronicled by Patricia Seed, Lucrezia’s vow functions as a ritualistic recognition of the transition from founding to maintaining and provides the moment of symbolic mediation that converts the violence of conquest into recognized authority. This continuity between the conquest of women and the conquest of a new state indicates a variability of objects. While the seminal texts in the history of political thought treat conquest primarily as a mode of acquiring territory, one conquers not only land but also populations, markets, resources, and women. If we take Machiavelli seriously, the figure of the sexual and romantic conquest cannot simply be dismissed as an innocent metaphor. Rather, it functions as a complex metonym, highlighting on the one hand the affective structure of political conquests and on the other hand, the political structure of sexual conquests.

Two Faces of Conquest

If Machiavelli emphasizes the technical and strategic dimensions of conquest as well as the political paradox whereby the success of a conquest is predicated on the denial that a conquest happened, some of his sixteenth-century contemporaries faced the problem of how to turn the empirical fact of the European conquests of the New World into legal and political claims. Curiously, Machiavelli has little to say about the conquest of the New World, even though it took place during his lifetime. In chapter XXI of The Prince, he cites Ferdinand of Aragon as an example for a highly esteemed prince. Ferdinand, he writes, “has become by fame and by glory the first king among the Christians.”30 But what makes Ferdinand such an exemplary prince is not his exploits in the New World (which go unmentioned), but the reconquista—the so-called ‘reconquest’ of Granada, the consolidation of Spanish territory, the expulsion of the Marranos, and the wars he fought in the Italian peninsula. Machiavelli thus makes an implicit distinction between conquests that take place in Europe and conquests that take place in the New World. And the politically pertinent conquest is the one that takes place in Europe, indeed the conquest that in significant ways consolidates the fiction of Europe as a Christian space.

Not coincidentally, this distinction between Isabella and Ferdinand’s Iberian and overseas conquests was also crucial for Las Casas’ argument against the massacres and atrocities in the New World. As we have seen, Las Casas articulates his critique in part by refusing to label the violence in the Americas a ‘conquest’. Yet Las Casas did not reject the vocabulary of conquest in general. He thought it quite appropriate to describe war against the “Moors of Africa” and the “Turks or heretics who hold our lands, persecute Christians and work to destroy our sacred faith.”31 Conquest, we may infer, can only be the result of a war against infidels, and not just any infidels—after all, the natives in the New World were heathens—but against those infidels who are seen as threats to Christianity. As a Dominican, Las Casas accepted the Thomist theory of just war, according to which war is a juridical mechanism that parallels punishment and must therefore rely on a just cause. To apply the language of war and conquest to the genocidal pillage of the Indies would thus cede the moral distinction between just and unjust war, between the ‘lawful’ Christian reconquista of the Iberian peninsula and the ‘wrongful’ Muslim conquests of Christian territories. To call the massacres in the Americas a conquest would be to put the “gentle Indians” on the same moral standing as the “Mohammedan usurpers” of al-Andalus. By refusing to call the massacres in the New World a ‘conquest’, Las Casas thus rejects the comparison between the conquistadors and the heroes of the reconquista and instead presents the former in a vocabulary reminiscent of how medieval chroniclers depicted the Arab conquerors of Visigothic Spain.32 The Lascasian critique of Spain’s colonial policy hence mobilizes a politico-theological template that treats conquests in Europe as radically incommensurable with those in the colonial world. The discontinuity between these two types of conquest bespeaks the fact that from its earliest formalization in the sixteenth century, colonial conquest emerged as an institution separate from intra-European forms. Conquest, in other words, is not one. In what follows, I will sketch the two branches of the genealogy of conquest by turning to two sets of debates: (i) the 16th-century Spanish disputes about the legitimacy of the conquest of America, and (ii) the 17th-century English controversies about the Norman conquest.

Conquest as a Colonial Institution

Ever since Columbus’s first voyage, the Spanish Crown had been concerned with the legality of its colonial project. For the justification of its American conquests, the Spanish Crown could rely on a series of papal bulls granting Spain sovereignty over its possessions in the New World. In four bulls promulgated in 1493 (Inter caetera, Eximiae devotionis, Dudum siquidem), Pope Alexander VI provided for Spanish dominion over all the lands discovered by Spain to the west and south of a north-south line 100 leagues west and south of the islands of the Azores. Yet even though it routinely referred to the papal donation and the pontifical mission to evangelize the Indians, the Spanish Crown was always careful not to base its rights in the Americas exclusively on papal donation. Thus the law of 1519 that declared the Indies a part of the Crown of Castile grounded the claim to sovereignty over the New World on the “donation of the Holy Apostolic See and other just and legitimate titles.”33 What other these “other just and legitimate titles”?

The question of how to justify colonial conquest was controversial throughout 16th century Spanish political thought. It came to a head in the Valladolid controversy of 1550-1551, which pitted Las Casas against his fellow Dominican Juan Ginés de Sepúlveda.34 The debate was sponsored by Charles V, King of Spain and Holy Roman Emperor. It was concerned, at least in part, with the nature of the beings whom the Spaniards encountered in the New World, whether they were rational (and thus capable of self-government and owning property) and what duties, based on natural and divine law, the Spanish conquerors have towards them. Whereas Las Casas saw the Indians as “noble savages” and “gentle lambs,” Sepúlveda characterized them as natural slaves and argued that wars against them were lawful. The significance of the Valladolid controversy was twofold: first, it represented an official attempt by the Spanish Crown to develop a coherent and compelling theological and legal justification for its colonial ventures. This official investment in legitimating conquest indexes a pivotal shift: the right of conquest was no longer guaranteed. It had to be argued for and derived from competing principles of natural and divine law. Second, the focus in the Valladolid controversy on the nature of the Indians heralds an entirely new form of justifying conquest: the conqueror’s right derives no longer from papal or royal dispensation but from the kinds of beings encountered in the new world. If, as Sepúlveda had argued in his Democrates Secundus (1547), Indians are “homunculi” with hardly a vestige of humanity, if they are barbarians, lacking culture, letters, and history, if they are not only ignorant but also vicious and cruel, they must—for their own welfare and by the law of nature—be governed by the will of others.35

Sepúlveda’s Democrates Secundus was poorly received at the time. It was universally condemned by the Dominican theologians at the University of Salamanca (who rejected the humanist interpretation and translation of the relevant passage in Aristotle’s Politics36), denied the royal placet for publication, and banned from circulation by Philip II. But if, as Richard Tuck has argued, the notion of natural slavery was a commonplace among 16th century humanists, the reasons for the censorship have probably less to do with Sepúlveda’s justification of colonialism than with the concerns of the Spanish Crown and universities to dissociate themselves from this brazen vindication of conquest.37 From the point of view of colonial ideology, Sepúlveda’s unvarnished defense of conquest on the basis of cultural superiority may well have been more of a threat than the reformist moralism of Las Casas that demanded a more gentle and less brutal evangelization. If Valladolid marks the moment at which colonial conquest requires an ideological cloak, it also establishes limits on the type of legitimation that can be voiced publicly.

The most lasting contribution to the official legitimation of conquest was made by neither of the participants of the Valladolid debate but by the theologian Francisco de Vitoria. His 1539 lecture, De Indis, offers the most systematic analysis and evaluation of arguments for conquest.38 It assesses seven legitimate and seven illegitimate titles to Spanish dominion and jurisdiction over the Americas. Starting with the illegitimate titles, Vitoria sets out by rejecting (on empirical grounds) the discovery doctrine, i.e. the idea that prior to Spanish discovery, the new world was terra nullius and thus subject to acquisition by discovery and occupation. Next, Vitoria addresses the argument that those who fall under the Aristotelian category of ‘natural slaves’ are unfit for self-government and best ruled by others. While Vitoria does not deny the principle, he contends that in the absence of conclusive evidence to the contrary, the Indians are to be regarded as full masters of their territories. Along similar lines, he also rebuffs all claims that the Indians lack dominion over their territories on grounds of sin, unbelief, irrationality, madness, or immaturity.39 Vitoria then goes on to deny the title by papal donation, contending that neither the pope nor the emperor has the authority to grant jurisdiction to other princes. Finally, neither the Indians’ refusal to accept Christianity nor their sinfulness provides the Spaniards with a just title.

Among the just and legitimate titles for Spanish dominion, Vitoria lists the right of the Spaniards to travel, dwell in, and trade with the new world, a right that may not be denied them by the “barbarians.”40 Moreover, Christians have the right to preach the Gospel, to evangelize the Indians and protect the converts from idolatry.41 Most importantly, Vitoria acknowledges that Spain may legitimately rule the native population for their own benefit, either if they are unable to govern themselves or to defend the innocent against tyranny or nefarious customs (such as cannibalism or human sacrifice).42 Vitoria’s three valid titles of conquest were of lasting significance for European colonial discourse. By developing a justification on the basis of just war and humanitarian intervention, Vitoria’s argument quickly became “the most popular official defense of the conquest.”43 The idea that conquest is legitimate on the basis of just war, and that war is just on the grounds of protecting (i) the freedom to trade, (ii) the freedom to evangelize, and (iii) the innocent against barbarism generated the three pillars for the European justification of colonialism. Whereas the Spanish and Portuguese tended to justify their imperial ventures in terms of evangelization, the English and Dutch adduced commercial and economic arguments, and the French explained their conquests as a mission civilisatrice.

Vitoria and the theologians of the Salamanca school decisively shifted the coordinates of the debate concerning the right of conquest, away from papal donation and discovery. While Spain and Portugal continued to reference the papal bulls as a source for their titles, the writings of Vitoria and the Salamanca school denied the European claims to discovery, occupation, and papal jurisdiction. By rejecting the principle of universal papal jurisdiction, the Spanish theologians herald what will eventually become the sole legitimate grounds for conquest and colonization: the real or feigned concerns for the spiritual, economic, and humanitarian welfare of the colonized.

Conquest as Code

Only a few decades later, in late 16th and 17th century England, the question of conquest also took center stage in a major political controversy. Despite the ongoing colonization of North America by English Dissenters, the English debate concerned not the conquest of the New World, but the conquests of the British isles. During the constitutional crises in 17th century England, conquest—and especially the Norman Conquest—became the focus of a controversy about the rights and obligations of the monarchy and of Parliament respectively.44

Until the early 16th century, the English Crown exercised its authority on the basis of the right of conquest, with every royal act specifying that the King’s authority derives from conquest.45 Even though the practice of referencing the right of conquest in every royal act disappeared with Henry VII, the English Crown continued to claim its title from William’s victory in the battle of Hastings in 1066. The justification, widely accepted at the time, was that conquest affords a valid title of dominion based on the conqueror’s option of putting the vanquished population to death, which, if not pursued, imparts the conqueror with a right of dominion.46 In the English constitutional crises of the 17th century, this claim to authority on the basis of conquest was attacked from two sides: Anxious to dispel the assertion of unlimited royal power, Parliamentarian critics of absolutist monarchy argued that William the Conqueror was in fact no conqueror at all but a lawful successor to the prior Anglo-Saxon kings. They reasoned that the 11th-century King, Edward the Confessor, who died without issue, had bequeathed the English Crown to William and that William “came with forces into this kingdom, not to conquer, but make good his title against his enemies.”47 If William was a lawful successor to the English Crown, this makes it possible to argue that the English monarchy was actually based on popular sovereignty. At some point in the distant past, the people had transferred their original sovereignty to the king, subject to certain conditions and limitations (viz. that the king rules not absolutely but only in conjunction with Parliament). The denial of conquest became the “intellectual backbone of the Parliamentarian Revolution.”48

Whereas the Whigs contested the fact of the Norman Conquest, for the most part, they did not challenge the right of conquest. By insisting that William’s succession was hereditary, they left intact the normative structure of conquest and the legal and political claims that could be made on the basis of conquest. In contrast, the second group of critics, namely the radical Levellers, accepted the fact but rejected the right of conquest: they contended that no legitimate title can be derived from conquest and thus attacked conquest as a juridical institution. For the Levellers, conquest marks a false and unlawful political foundation. As opposed to the Whigs who denied that the battle of Hastings constituted a conquest (and therefore a political and legal rupture), the Levellers accepted the Royalist claim that the English Crown’s title is based on the Norman Conquest. Yet from this historical event they drew a radically different conclusion, arguing that the king’s law is tyrannical precisely because it has its origins in conquest and violence.49

The significance of these English debates is that conquest becomes, for the first time in European political discourse, the basis for claims not only in favor but also against political authority. In the Spanish controversies, a century earlier, the question at hand was that of the concrete rights and obligations Spain his vis-à-vis its new subjects in the Americas. The Valladolid controversy was a dispute about the best way to Christianize the native population and thus to fulfill the evangelical mission mandated by the papal bulls. Thus in Spain, conquest emerges as a colonial problem with a series of epistemological, ontological, and theological questions that apply exclusively to the New World and its inhabitants. To call into question the rightfulness of conquest in no way challenged the existing rights and territorial organizations in Europe. By contrast, in the English case, a century later, the political problem framed by the debate about conquest was completely different: it was concerned with the legitimacy of the English Crown. The argument from conquest was about absolute monarchy, about sovereignty, and about the legal foundations of royal power. In the English civil war, conquest operated as a political trope, what Foucault calls a “code” through which a variety of political claims can be made—Royalists, Whigs, as well as Levellers and Diggers were able to draw on this code to advance their claims regarding the rights of the monarchy and Parliament, respectively.50

The reliance on conquest as a code for conflicts about absolute monarch raises a number of problems, chief among them, the issue of usurpation. Royalists faced the dilemma that if they derived sovereignty from conquest and if conquest is seen as a basis for legitimate rule, they would have a hard time mounting a case against a republican usurper such as Cromwell and his Commonwealth. This is of course precisely the paradox of conquest that Machiavelli formulated a century earlier. The concept of usurpation becomes incoherent if conquest is accepted as a source of legal claims. Take for instance Robert Filmer’s argument in his Observations upon Aristotle’s Politiques (1652), that usurpers who have reigned for so long that “the knowledge of the right heir be lost” are to be regarded as rightful kings.51 At what point does the fact of conquest give rise to a legal right? To clarify this issue, some 17th century royalists argued not from de facto conquest but from divine intervention or “providentialism.”52 Even though they readily conceded the historical reality of the conquest, they inferred the normative consequences not from the fact of conquest but from the divine right which it symbolizes. Conquest, according to the providentialist rationale, is merely a sign of divine approval. Thus if a monarch, including a usurper, manages to establish effective control and government over a certain period of time (one generation, three generations, or a century, depending on the texts one consults), then this indicates a divinely legitimated title. The providentialist theory is based on the postulate that war constitutes a kind of judicial procedure in a situation in which there is no legitimate judge to settle competing claims. According to this view war is a kind of trial, in which victory is the divinely ordained proof of the justness of the victor’s claim.

Similarly, the Whigs were forced to devise some theoretically innovative arguments to code their limited view of monarchy in the language of conquest. Blackstone, for instance, asserts emphatically that the Norman Conquest was merely the “forcible transfer of the crown of England into a new family” and that this transfer did not change any of the crown’s “inherent properties,” for the victory at Hastings was not “a victory over the nation collectively, but only over the person of Harold.”53 Accordingly, the only right that can derive from such a victory is the acquisition of government, not the right to alter its nature. By referring to the etymology of conquest as signifying nothing more than purchase, Blackstone argues that all that is meant by William the Conqueror’s appellation is that he obtained the crown by means other than inheritance and that he “was the first of his family” to be king of England.54

Yet perhaps the thorniest theoretical problem concerning the trope of conquest was faced by the Tories, when the debates about conquest of the 1640s were replayed half a century later during the Glorious Revolution of 1689. The Glorious Revolution would not have been successful, had it not been for the military invasion of William of Orange that deposed King James II. But on what basis can William be said to be a legitimate pretender to the English throne? For the Whigs, who held a parliamentary majority, the problem did not really pose itself. For them, William’s legitimacy was based on parliamentary authority. Parliament had declared that by fleeing, James II had left the throne of England vacant, and it elected William and Mary as joint sovereigns to replace him. But for the Tories, who denied the authority of the people (and by extension of Parliament) to elect a monarch and insisted on the duty of passive obedience and nonresistance, the story was more complicated. Their concern was to find a way to recognize William’s authority while avoiding the radical implication that William had been invited and elected king by the people. In this context, a number of royalist pamphleteers argued that the events of 1688-89 were not in fact a revolution but a just conquest.55

Thus in the context of the 17th-century constitutional debates in England, conquest became a generic concept for the transfer of political authority. The language of conquest could become a normative framework for the revolution of 1689 because it offered a way of theorizing the idea of a constitutional rupture. Conquest marks a break in the political order, a manufactured split of political time into a “before” and an “after.” By hoisting the vocabulary of conquest onto the coup d’état of 1689, English authors could legitimate the political discontinuity without at the same time conceding the democratic implications of popular sovereignty. Instead, the concept of conquest allowed royalists to introduce the criteria of just war into the domestic context. Drawing on a highly selective reading of Grotius, Tories argued that William of Orange was a victor in a just war.56 This doctrine of just conquest allowed Tories to maintain that monarchy was founded on divine right, transmitted by heredity, and that rebellion against a monarch was both unjust and sinful.

Liberal Conquest: Hobbes and Locke

It is no accident that the terminology of conquest was deployed most effectively to theorize royal power in the absolutist state. For conquest embodies a will to domination that seems fundamentally at odds with the basic premises of modern liberalism. Conquest seems incompatible with liberalism because it contradicts the fundamental postulates of individual freedom and of representative government. In light of this presumptive irreconcilability of liberalism and conquest, it is all the more remarkable that the founders of liberalism as a political philosophy—Thomas Hobbes and John Locke—managed to generate a theory of liberal conquest.

In his Leviathan, Hobbes lists two mechanisms whereby sovereignty can be established: by institution or by acquisition. Sovereignty by institution involves a covenant among individuals in the state of nature who thus establish a sovereign power, while sovereignty by acquisition is acquired in war, in a situation in which the vanquished “to avoid the present stroke of death” enters into an (express or tacit) agreement “that so long as his life and the liberty of his body is allowed him, the victor shall have the use thereof, at his pleasure.”57 Unlike sovereignty by institution, it does not involve a covenant among individuals, but a covenant between the conqueror and the vanquished, whereby the conqueror becomes the sovereign and the vanquished the subject. Notwithstanding that Hobbes presents both types of sovereignty as equivalent in terms of rights and obligations, rhetorically, they are in fact radically different and play very distinct roles in his text. Whereas sovereignty by institution provides the normative foundation for political authority, sovereignty by acquisition furnishes the applied model: the former develops a fictional blueprint for why one ought to obey the state while the latter provides actual empirical leverage for how the fictional theory of authorization pertains to actually existing political institutions. Sovereignty by acquisition functions as a translation mechanism to justify all forms of de facto power, including the right of conquest. Put differently, the Hobbesian story of the social contract is the icing on a cake made of conquest and subjugation. Yet what makes the Hobbesian derivation of the right of conquest so distinctive is that it is not based on a recognition of de facto authority:

Conquest is not the Victory itself; but the acquisition by victory of a right over the persons of men. He, therefore, that is slain is overcome, but not conquered; he that is taken, and put into prison or chains, is not conquered . . .But he that upon promise of obedience hath his life and liberty allowed him is then conquered and a subject, and not before.58

By emphasizing the distinction between conquest and victory, Hobbes defines conquest as a procedure of political legitimation that goes beyond de facto power. For Hobbes, conquest consists in the conferral of a right of sovereignty upon a victor by the promise of obedience by the vanquished. Because political right is based on contractual authorization, the king’s political authority derives not from a historical right of conquest established hundreds of years earlier but instead from the consent of his subjects today.

By defining consent in the thinnest possible way, Hobbes effectively collapses the distinction between conquest and consent to the point that there is, in Carole Pateman’s words, “no difference between conquest and contract.”59 The identity of conquest and consent has implications not only for sovereign power but also for the dominion of masters over servants, husbands over wives, and parents over children.60 Hobbes explains parental (or more specifically, maternal) authority as follows: the infant’s life depends on the mother’s care; she has the option to “nourish or expose it, if she nourish it, it oweth its life to the mother, and is therefore obliged to obey her.”61 A child that is being nourished and cared for can thus be presumed to have consented to his or her mother’s authority. The example of maternal authority and the spurious idea that an infant can give consent illustrates Hobbes’s formidable achievement for the justification of conquest: he validates conquest neither on the basis of de facto power nor by divine right but on what appears to be the most implausible grounds: by postulating the identity of conquest and consent. Because it made conquest compatible with the basic liberal postulate of individual freedom, this presumption of consent thus provided the moral foundation for liberal conquest.62

Locke attempted to correct the excesses of Hobbes’s theory of conquest by rejecting the principle of the right of conquest but leaving open some loopholes, an approach we might call conquest by exception. Contra Hobbes, Locke denies that sparing someone’s life in war or combat gives one automatic dominion over that person. For such a right to come into being, one must first have forfeited one’s life, and among the ways one loses one’s right to life is engaging in unjust war or breaking the law. Locke argues that a conqueror has no right upon the subjugated population, except under narrow conditions. Conquest “is as far from setting up any government, as demolishing an house is from building a new one in the place.”63 The only situation in which conquest gives rise to a right is that of a captive in a just war who forfeits his life “for having quitted reason” and for violating natural law “the way of beasts.”64 As a consequence of this forfeiture, the conqueror may lawfully destroy or enslave such a captive. By limiting the claims that derive from conquest to captives in just war, Locke tightens the conditions of conquest; yet by identifying forfeiture with unreason, he introduces a normative account of reason as a criterion for which bodies may or may not be conquered. Reason, it turns out, is not an anthropological universal but is differentially distributed, hence the importance of education in the liberal vision of empire from Locke through Condorcet to Bentham. In the context of the Atlantic slave trade, justified largely through recourse to just war theory, the Lockean restrictions on conquest contributed to the two different standards for conquests in Europe and in the colonial world.

This double standard is particularly evident in Locke’s discussion of what titles to property could be derived from conquest. Locke distinguishes strictly between injury and damage and whereas injury gives title to the person’s life, only sustained damage gives a title to someone’s property.65 Accordingly, he insists that the conqueror’s right is restricted to the lives of captives in a just war and does not extend to their possessions, which by right belong to the unjust warriors’ families.66 But Locke leaves open the possibility that a claim for damages gives a title to reparations and that on these grounds (subject to certain limitations), lands and provinces can be expropriated. Satisfying the damages of war will, however, rarely provide a title to conquered land ”for the damages of war can scarce amount to the value of any considerable tract of land, in any part of the world, where all the land is possessed, and none lies waste.”67 If the unjust warrior has not taken away any of the conqueror’s land, then at most he would be liable for the economic loss accrued during the war, which, Locke insists, is unlikely to amount to the value of land.

The proviso “in any part of the world, where all the land is possessed, and none lies waste” is critical. What Locke implies but does not say, is that the situation might well be different in a part of the world where land remains in the commons and is not privately owned, for instance in such “vacant places of America.”68 For such lands that are owned in common (or in Locke’s parlance: “lying waste in common”), he tells us elsewhere, yield at best one tenth of privately owned land, and if such lands are in the “wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry,” they are likely to yield only a hundredth of the produce that a single acre of privately owned land in Devonshire might offer.69 At one place, Locke even suggests that the difference might be a thousandfold.70 Locke’s insistence that war reparations would not amount to a title to land “in any part of the world where all the land is possessed,” thus seems to open the door for large-scale expropriations of land through conquest in the New World at the same time as it would exclude such expropriations in Europe.

For Locke, then, conquest gives rise—under certain conditions—not to political rights but to the property rights over individuals (captives) and over land. The ingenuity of Locke’s argument makes such claims not dependent on the act of conquest or the subjugation that follows it but instead on the captives’ unreason and on the waste in which lands lay unless they are subject to private ownership. It is not the conqueror’s right qua conqueror but natural law that provides a conqueror “liberty to make use of the waste.”71 As C.B. Macpherson has argued, the entire architecture of Locke’s justification of property can be understood as providing a title to lands “lying waste in common.”72 Insofar as private ownership exponentially increases the productivity of land, appropriation is not merely a right but more akin to a moral duty. Indigenous Americans “are rich in land, and poor in all the comforts of life,” for they have failed, according to Locke to improve the land by labor, leaving “a king of a large and fruitful territory there” worse off than a day laborer in England.73 This last comparison—between the king of a native American nation and an English day laborer—is not just Lockean hyperbole. Rather, it serves as a crucial link in the logic of his argument. For if he can show that the poorest person in a society in which all the land is privately appropriated is better off than the richest person in a society in which land is owned jointly, then this provides a rationale that any private appropriation of land would be in the best interest of the indigenous population. Since such an appropriation would ex hypothesi make literally everyone better off, it would not only be lawful but indeed required by the law of nature that demands that everyone “ought . . . as much as he can, to preserve the rest of mankind.”74 Not only does this reasoning justify the conquest of native land in North America, it frames such a conquest as a moral duty.

What does that mean for conquest? No political or economic rights can be derived immediately from the act of conquest (hence Locke’s rejection of the argument that the English kings derive their power from the Norman Conquest). Yet indirectly, by way of a just war, conquest yields despotical rights (i.e. the right to enslave unjust warriors) and a moral duty to appropriative land owned in common. As foreshadowed by Vitoria, such an appropriation is legitimate only on humanitarian grounds, only if it promotes the welfare of the colonized. This “agriculturalist” argument is the best justification available, once claims to private property on the basis of conquest had become inadmissible.75 Conquest, we might say, has been privatized: it involves no longer the lawful subjugation of an entire population, but the enslavement of individuals and the appropriation of land lying in waste.

The continued influence of the Lockean models of conquest by exception and of the privatized conquest can be traced to the jurisprudence of the United States Supreme Court. In 1823, the U.S. Supreme Court heard what became a landmark case concerning a property dispute over tracts of lands in Illinois and Indiana. The case, Johnson v. M’Intosh involves a conflict between plaintiffs (Johnson), whose ancestors had bought land from Indian tribes in the 1770s and defendants (M’Intosh) who had obtained a land patent from the U.S. federal government over the same land. In its ruling for the defendant, the Court refused to recognize the Indian title to the land. The Court held that the United States’ title to the land derives from conquest, according to what Robert Phillimore has called the “cardinal maxim of [U.S.] public jurisprudence that the system under which the United States were settled has been that of converting the discovery of the country into conquest.”76

As a cultural trope, the conquest of the Indians has a long tradition in the imaginary of the United States as a white settler society. In Winthrop Jordan’s words, “Conquering the Indian symbolized and personified the conquest of the American difficulties, the surmounting of the wilderness.”77 Yet for conquest to function as a principle of jurisprudence that denies Indian land claims required a creative interpretation of the international law of conquest with a Lockean twist. As the Supreme Court acknowledged, according to international law, conquest per se grants only jurisdiction over territory and no property rights over land. Having recognized that principle, the U.S. Supreme Court had to explain why the Indians lost their title to land. The Court accomplished this legal gambit through a crafty bit of legal maneuvering. It held that following a successful conquest, the conquered population is usually “incorporated” and “blended” with the conquering nation and becomes subjects or citizens.78 Upon such assimilation the conquered acquires rights and privileges, including property rights. However, the Court maintained that in the United States, this assimilation had not occurred, which led Chief Justice Marshall to argue that the usual legal restrictions limiting the rights of the conquerors do not apply.79

Because the Indian tribes in North America were “fierce savages” intent on fighting the white settler population and because they failed to recognize the conquest, the law of conquest cannot regulate the relations between conqueror and conquered. As a result of this incomplete conquest, the Indians are therefore not subjects or citizens but mere “occupants” of their land and thus “incapable of transferring the absolute title to others.”80 Whereas Machiavelli would have viewed the unfinished conquest as a failure of transitioning from the moment of founding to that of maintaining (and hence as a failure to generate the substitute for the natural legitimacy that customary authority commands), the Court turned the stalled conquest into an opportunity. It declared that Indians have only usufruct rights over their lands rather than full property rights.81 Justice Marshall’s reasoning was as follows: Had the European conquerors left the Indians in possession of the land, they would have left “the country a wilderness.” In other words, the United States government took over the land in order to ensure its cultivation. This of course, is precisely the Lockean argument: the colonizers merely fulfill their obligation under natural law to prevent land from lying in waste. The Court’s denial of Indian title to land thus relies on an unavowed appeal to Lockean principles under the guise of the unfinished nature of the conquest. Had the conquest been successfully completed, the Supreme Court appears to imply, there would have been no legal ground upon which to divest the indigenous population of their property rights. Paradoxically, the arrested conquest thus turns out to be more profitable than the consummated conquest.

Enlightenment Against Conquest 

By the 18th and 19th centuries, political theorists have largely given up on conquest. “We do not conquer anymore,” the Enlightenment seems to have proclaimed, be it because of Rousseauean lofty ideals or, as Benjamin Constant would say, because wars are simply too expensive and are no longer economically rational modes of acquisition. Montesquieu and Constant saw conquest linked to absolute monarchy and its tendency toward militarism and expansion. The spirit of monarchy,” Montesquieu will write “is war and expansion.”82 Thus the Enlightenment critique of absolutism conceived of itself simultaneously as a critique of conquest and aggressive war. Jean-Jacques Rousseau proclaims in his Social Contract that the right of conquest “has no other foundation than the law of the stronger.”83 And since one yields to the stronger not out of duty or obedience, but simply out of necessity, force cannot be the source of any right. To claim that force creates right is at best tautological and at worst absurd: the terms ‘right’ and ‘duty’ lose their meaning if the stronger is always right and if one can disobey legitimately whenever one has the power to do so.84

The late 18th and early 19th century disavowal of conquest has to be seen in the context of an increasing recognition of the long-term costs of the strategy of conquest in the Americas.85 The expense of maintaining colonies inhabited by European expatriates and African slaves was brought home to the British by the American Revolution (1774-1783), to the French in the Haitian Revolution (1791-1804), and to the Spanish in the Latin American revolutions and wars of independence (1809-1829). By the late 18th century, the commercial aspect of empires became ever more important to European powers, and in economic terms, military conquest was increasingly seen as an expensive imperial strategy.86 Thus Adam Smith complains that “[t]he taxes which have been levied upon those [colonies] of other European nations, upon those of England in particular, have seldom been equal to the expence laid out upon them in time of peace, and never sufficient to defray that which they occasioned in time of war. Such colonies, therefore, have been a source of expence and not of revenue to their respective mother countries.”87 Of course the turn away from conquest was not a repudiation of empire, and colonization remained high on the agenda. Having developed the Lockean model of privatized conquest into a successful colonial strategy, the British had long believed that their empire (as opposed to the Spanish, Portuguese, and French) was based on commerce rather than conquest. And even though events in North America and India in the second half of the 18th century undermined the fiction of the British empire as based exclusively on freedom and commerce, other European states took note that Britain had established a substantially more efficient and more profitable alternative to running plantations on imported slave labor. Rather than abducting and transporting thousands of African slaves across the Atlantic ocean, Britain’s colonies in India drew on the vast local labor force. And instead of being enslaved, the laborers were paid a wage.88

Constant put the matter in stark terms: whereas the ancients needed war to survive, the moderns acquire things through commerce:

We have finally reached the age of commerce, an age which must necessarily replace that of war. . . War and commerce are only two different means to achieve the same end, that of possessing what is desired. Commerce is simply a tribute paide to the strength of the possessor by the aspirant to possession. It is an attempt to obtain by mutual agreement what one can no longer hope to obtain through violence. . . . War then comes before commerce. The former is all savage impulse, the latter civilized calculation.89

As Constant makes clear, once property rights are guaranteed, commerce and conquest are substitutable, and commerce becomes the economically rational tactic of acquisition. Commerce replaces conquest not because of democratic or humanitarian rationales but because wars are costly and consume more resources than they yield.

This is not to say that either the practice or the discourse of conquest disappeared. Thus Chateaubriand, the French writer and diplomat, could describe Orientals, in his travelogues, as people in need of conquest,90 while a century later, the French statesman Albert Sarraut would write that colonial conquest is not based on the right of stronger but on the generosity of the more civilizationally advanced with respect to weaker and backwards societies.91 But by the time that Chateaubriand and Sarraut advocated European conquests, the discourse and rationales had changed: conquest was no longer a juridical institution. It had ceased to be regarded as a conclusive source of right and legal title. To be sure, conquests still took place. But they no longer founded sovereign right. This is most evidence in the case of the late 19th century European conquest of equatorial Africa, which was billed not as a conquest but as a veritable anti-conquest—as the liberation of Africans from slavery and as the defeat of the slavers and slave-regimes that operated in sub-Saharan Africa.92

While the practice of conquest continued to flourish, the right of conquest was increasingly rejected by European legal and political theorists. Against Grotius, Hobbes, and Locke, who derive the right of conquest from the victor’s prerogative to kill the vanquished, Rousseau denies the victor any claim to the subdued enemy’s life. In the Social Contract, he insists that war is not a relation between individuals but between states, and that individuals are enemies only by accident. It follows that the victor has no right to make the vanquished buy his life back at the cost of his freedom.93 And since the right of conquest is no right at all, it also cannot serve as the foundation for any other right.94 Following Rousseau, Immanuel Kant also denies the right of conquest. Conquest, plunder, and enslavement, Kant insists, is contrary to natural right. Wars must not be punitive, and they must not be wars of extermination or subjugation, because the law of nations, while it is built on the idea of antagonism between states, does not authorize war as a principle of acquisition.95 Like his late 18th and early 19th century contemporaries, Kant is engrossed in the logic of commerce, which he emphasizes by insisting on the cosmopolitan right to trade and universal hospitality.

Yet the formal disavowal of conquest as a legitimate mode of acquiring territory by the Enlightenment is frequently accompanied by a recognition of conquest as a legitimate epiphenomenon of war. Thus Emer de Vattel’s 1758 classic Droit des gens denounces the right of conquest while recognizing the lawfulness of taking enemy property as punishment or compensation.96 Accordingly, even though Vattel denies the right of conquest, he considers just war “a lawful mode of acquisition.”97 Kant follows Vattel’s argument, declaring conquest an unlawful motivation for war yet accepting annexation as a corollary of a rightful war. It is the victorious state’s right to define the criteria under which it will agree to a peace treaty with the vanquished state, a right that derives not from any injustice or injury but simply from the fact of the victor’s superior force.98 There are limitations to the victor’s right, yet those limitations apply primarily in contexts in which the vanquished population is organized in a state, i.e. in Europe.

In short, the Enlightenment called not for the abandonment of conquest as a practice of appropriation but for a series of restrictions and limitations on the conditions of legitimate conquest. By rejecting the principle of conquest yet recognizing conquest by exception, both Vattel and Kant follow the Lockean schema that permits conquest under certain formal constraints. Yet as the Kantian argument shows, these formal constraints are asymmetrical in their application to the colonial world: while the limitations protect European states from conquest and subjugation, the requirement of statehood leaves open the possibility of conquest and subjugation of any geographic space that is not politically constituted as a recognized state. Underneath the Enlightenment disavowal of conquest, there is a continuity of endorsing conquest not as a universally legitimate form of appropriation but as a selective and exceptional procedure that disproportionately applies to the colonial world.


Conquest is a type of foundational violence, indeed perhaps the paradigmatic type. It is foundational insofar as it introduces a political rupture, what Machiavelli has called “new modes” and “new orders.” Conquests inaugurate new rights and obligations; they frequently obliterate the political, legal, and social customs and conventions and consecrate new privileges and authorities. In founding a new order, the conquest sunders the temporal continuum, instituting a caesura, a new dawn that separates a “before” from an “after” the conquest. To mark and celebrate this foundational moment in political and legal memory, conquests have always relied on narratives: from the Arthurian legend of the High Middle Ages to the chronicles of the Norman and Spanish conquests, there exists an entire literary genre that memorializes conquest. Yet as Ranajit Guha reminds us, a conquest never consists of a single story: “It is made up of at least two—one narrated by the conquerors and the other by the conquered . . . for every narrative of triumph and hope told in the conqueror’s voice there is a counternarrative of defeat and despair told by the conquered.”99 In the wake of the turn against conquest, that double narratability is what makes the concept of conquest not simply a technology of acquisition but also a trope that can be mobilized as a potentially effective counter-discourse. Foucault describes the discourses of conquest that emerged in 17th century England and France as counter-histories that challenge the unity of the sovereign state and the universality of the law. In Foucault’s view, the English narratives about the Norman Conquest and the French stories about how the Franks subdued the Gauls functioned as contestations of the hegemonic English and French political discourses. These stories of conquest challenged the official representations of the state and the law to the extent that they rendered society as riven by a binary division between conquerors and conquered. By appropriating this division as an analytical lens, these narratives of conquest demonstrate that the foundational narratology of conquest can be inverted and turned against the dominant class to generate a critique of official history and show the extent to which the hegemonic histories function as forms of ideology. Conquest, in other words, functions also as the paradigmatic form of history from below, a narrative form that justifies rebellion and insubordination and that, beginning in the 17th century, offers an interpretive schema for telling an alternative account.


Yves Winter is Assistant Professor of Political Science at McGill University.


Published Winter 2012

1. Bartolomé de Las Casas, A Short Account of the Destruction of the Indies, trans. Nigel Griffin (London: Penguin, 1992), 6.

2. Las Casas, A Short Account of the Destruction of the Indies, 11.

3. Bartolomé de Las Casas, “Memorial de remedios,” in Obras Completas, ed. Paulino Castañeda, et al. (Madrid: Alianza Editorial, 1995), 117, my translation.

4. Las Casas, A Short Account of the Destruction of the Indies, 12.

5. Hakluyt, The Original Writings and Correspondence of the two Richard Hakluyts, ed. E. G. R. Taylor, 2 vols (London: 1935), vol. I, 332. Quoted in Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France C. 1500 – C. 1800 (New Haven: Yale University Press, 1995), 36.

6. See Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier 1600-1860 (Norman: University of Oklahoma Press, 1973), 5, 56.

7. That such a title was widely recognized at the time is evident from the Dutch jurist Hugo Grotius’s 1625 work De jure belli ac pacis. According to Grotius, the law of nations provides the conqueror with absolute and unlimited rights over the conquered, including the right to kill or enslave any inhabitant or visitor captured in the enemy territory, and to seize and destroy any public or private property. Hugo Grotius, The Rights of War and Peace [De jure belli ac pacis], 3 vols. (Indianapolis: Liberty Fund, 2005), III, c. 6, § 1-2, c. 7, §1.

8. Robert Bartlett, The Making of Europe: Conquest, Colonization, and Cultural Change 950-1350 (London: Penguin, 1994).

9. Bartlett, The Making of Europe, 314.

10. Bartlett, The Making of Europe, 89-90.

11. Bartlett, The Making of Europe, 90-96.

12. Benjamin Constant, “The Spirit of Conquest and Usurpation and Their Relation to European Civilization,” in Political Writings, trans. Biancamaria Fontana (Cambridge: Cambridge University Press, 1988).

13. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G.L. Ulmen (New York: Telos Press, 2003), 101.

14. Niccolò Machiavelli, The Prince, trans. Harvey C. Mansfield, 2nd ed. (Chicago: University of Chicago Press, 1998), III, 14.

15. Niccolò Machiavelli, Discourses on Livy, trans. Harvey C. Mansfield and Nathan Tarcov (Chicago: University of Chicago Press, 1996), I.6, 22, II.2, 129.

16. In the mid-14th century, Boccaccio refers to “il conquisto fatto della Terra Santa.” Decameron, 1. 9.2. And Giovanni Villani, a 14th century chronicler whose Cronica Machiavelli had read, also uses the term conquistare. Giuseppe Porta, ed. Nuova cronica, (Parma: Fondazione Pietro Bembo, 1990), 7.39.3.

17. Alexander M. Burrill, A Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms of the Common and Civil Law, 2nd ed. (New York: Baker, Voorhis & Co., 1871), 348-50.

18. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769, 4 vols. (Chicago: University of Chicago Press, 1979), bk. II c.15, 242-243.

19. Machiavelli, The Prince, II, 7.

20.Machiavelli, The Prince, XXIV, 96.

21. See Tzvetan Todorov, The Conquest of America, trans. Richard Howard (Norman, OK: Oklahoma University Press, 1999), 53, 60; Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492-1640 (Cambridge: Cambridge University Press, 1995), 2.

22. Lewis Hanke, “The “Requerimiento” and Its Interpreters,” Revista de Historia de América 1 (1938): 25-34.

23. Anthony Pagden, “Introduction,” in Bartolomé de Las Casas, A Short Account of the Destruction of the Indies, (London: Penguin, 1992), xxv.

24. Machiavelli, The Prince, XXV, 101.

25. See Hanna Fenichel Pitkin, Fortune is a Woman: Gender and Politics in the Thought of Niccolò Machiavelli (Berkeley: University of California Press, 1984).

26. Gayle Rubin, “The Traffic in Women: Notes on the ‘Political Economy’ of Sex,” in Feminism and History, ed. Joan Wallach Scott (Oxford: Oxford University Press, 1996), 115-20.

27. Niccolò Machiavelli, “Mandragola,” in Chief Works, and Others, ed. Allan H. Gilbert (Durham, NC: Duke University Press, 1989), V.4, 819.

28. Machiavelli, “Mandragola,” I.1, 780, my translation.

29. Machiavelli, The Prince, III, 14.

30. Machiavelli, The Prince, XXI, 88.

31. Las Casas, “Memorial De Remedios,” 117; my translation.

32. Pagden, “Introduction,” xxxix-xl.

33. Quoted in J.H. Elliott, The Old World and the New 1492-1650 (Cambridge: Cambridge University Press, 1970), 80.

34. For a summary of Sepúlveda’s argument, see Bartolomé de Las Casas, In Defense of the Indians: The Defense of the Most Reverend Lord, Don Fray Bartolomé De Las Casas, of the Order of Preachers, Late Bishop of Chiapa, Against the Persecutors and Slanderers of the Peoples of the New World Discovered Across the Seas, trans. Stafford Poole (De Kalb: Northern Illinois University Press, 1974), 11-16.

35. Juan Ginés de Sepúlveda, “Democrates Secundus,” in Obras completas, ed. Elena Rodríguez Peregrina and Baltasar Cuart (Pozoblanco: Ayuntamiento de Pozoblanco, 1997).. For a sympathetic portrait, see J.A. Fernández-Santamaria, The State, War and Peace: Spanish Political Thought in the Renaissance 1516-1559 (Cambridge: Cambridge University Press, 1977), 163-236.

36. Richard Tuck, The Rights of War and Peace: Political Thought and International Order From Grotius to Kant (Oxford: Oxford University Press, 1999), 70-71.

37. Tuck, The Rights of War and Peace, 42-44.

38. Francisco Vitoria, “On the American Indians (De Indis),” in Political Writings, ed. Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), 233.

39. Vitoria, “De Indis,” Q1.1, 240. On John Mair, who first applied the category of ‘natural slaves’ to Indians see Anthony Pagden, The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (Cambridge: Cambridge University Press, 1982), 38-39.

40. Vitoria, “De Indis,” Q3.1, 278-284.

41. Vitoria, “De Indis,” Q3.2-3.3, 284-286.

42. Vitoria, “De Indis,” Q2.5, 288, Q2.8, 290-291.

43. Tuck, The Rights of War and Peace, 75.

44. Christopher Hill, Puritanism and Revolution: Studies in Interpretation of the English Revolution of the 17th Century. (New York: Schocken Books, 1964).

45. Michel Foucault, Society Must Be Defended: Lectures at the Collège de France 1975-1976, trans. David Macey (New York: Picador, 2003), 99.

46. J.P. Sommerville, “Absolutism and Royalism,” in The Cambridge History of Political Thought 1450-1700, ed. J. H. Burns (Cambridge: Cambridge University Press, 1991), 364.

47. The quotation is from Philip Hunton, whose 1643 Treatise of Monarchy is typical in this regard. David Wootton, ed. Divine Right and Democracy: An Anthology of Political Writing in Stuart England, (London: Penguin, 1986), 198.

48. Quentin Skinner, “History and Ideology in the English Revolution,” The Historical Journal 8, no. 2 (1965), 153.

49. J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue With a Retrospect (Cambridge: Cambridge University Press, 1987). For a critique of Pocock’s reading of the Levellers position with regard to conquest, see R. B. Seaberg, “The Norman Conquest and the Common Law: The Levellers and the Argument From Continuity,” The Historical Journal 24, no. 4 (1981): 791-806.

50. Foucault, Society Must be Defended, 101.

51. Wootton, Divine Right and Democracy, 117.

52. Sommerville, “Absolutism and Royalism,” 365-66.

53.Blackstone, Commentaries, bk I, c.3, 192.

54. Blackstone, Commentaries, bk. II c.15, 242-243.

55. Mark Goldie, “Edmund Bohun and Jus Gentium in the Revolution Debate, 1689-1693,” The Historical Journal 20, no. 3 (1977): 569-86.

56. Grotius, Rights of War and Peace, Bk I, ch. IV, 360. Grotius’s just war theory had previously been appropriated in the context of the Engagement controversy of the 1640s. Anthony Ascham—one of the important Engagement theorist of the 1640s—introduced Grotius’s just war theory to the English context. Yet neither the Engagers of the 1640s nor the Tories of the 1680s took up what Grotius had to say about authority and usurpation, adopting instead his theory of just war to the domestic scene. See John M. Wallace, Destiny His Choice: The Loyalism of Andrew Marvell (Cambridge: Cambridge University Press, 1968), 33-34.

57. Thomas Hobbes, Leviathan (Cambridge: Cambridge University Press, 1996), XX, 141.

58. Hobbes, Leviathan, 485.

59. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 44.

60. As Pateman has shown, one of the tacit premises of Hobbes’s patriarchal political right is that by the time individuals covenant out of the state of nature, women have been conquered by men and subjected to them. Pateman, The Sexual Contract, 48-49.

61. Hobbes, Leviathan, XX, 140.

62. On liberalism and empire see Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999); Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005); Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press, 2010).

63. John Locke, “The Second Treatise of Government,” in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), ¶175.

64. Locke, “Second Treatise,” ¶172, ¶181.

65. Locke, “Second Treatise,” ¶10, ¶182.

66. Locke, “Second Treatise,” ¶180.

67. Locke, “Second Treatise,” ¶184.

68. Locke, “Second Treatise,” ¶36.

69. Locke, “Second Treatise,” ¶37.

70. Locke, “Second Treatise,” ¶43.

71. Locke, “Second Treatise,” ¶184.

72. C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962), 197-220.

73. Locke, “Second Treatise,” ¶41.

74. Locke, “Second Treatise,” ¶6.

75. David Armitage, “John Locke, Carolina, and the Two Treatises of Government,” Political Theory 32, no. 5 (2004), 618.

76. Robert Phillimore, Commentaries Upon International Law, vol. 3 (Philadelphia: T. & J.W. Johnson, 1857), 504. Quoted in Sharon Korman, The Right of Conquest: The Acquisition of Territory By Force in International Law and Practice (Oxford: Clarendon Press, 1996), 64.

77. Winthrop D. Jordan, The White Man’s Burden: Historical Origins of Racism in the United States (New York: Oxford University Press, 1974), 50.

78.Johnson v. M’Intosh, 21 U.S. 543, 589 (1823).

79. Joshua L. Seifert, “The Myth of Johnson V. M’Intosh,” UCLA Law Review 52 (2004), 316-17.

80. Johnson, 21 U.S. at 591.

81. The principle that Indians do not have dominion over their lands and have therefore no right to dispose of the land by gift or sale is established in a number of 17th century legal documents, not least in The Fundamental Constitutions of Carolina of 1669, usually attributed to John Locke. § 112 of The Fundamental Constitutions specifies that “No person whatsoever shall hold or claim any land in Carolina by purchase or gift, or otherwise, from the natives . . .” John Locke, “The Fundamental Constitutions of Carolina,” in Political Writings, ed. David Wootton (Indianapolis: Hackett, 2003), 230.

82. Charles Louis de Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (Cambridge: Cambridge University Press, 1989), Bk. 9, ch. 2, 132.

83. Jean-Jacques Rousseau, The Social Contract, and Other Later Political Writings, trans. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), Bk. 1, ch. 4, 47.

84. Rousseau, Social Contract, Bk. 1, ch. 3, 44.

85. Klaus E. Knorr, British Colonial Theories 1570-1850 (Toronto: University of Toronto Press, 1944), 207.

86. Howard Robinson, The Development of the British Empire (Boston: Houghton Mifflin, 1922), 161ff.

87. Adam Smith, An Inquiry Into the Nature and the Causes of the Wealth of Nations, 2 vols. (Indianapolis: Liberty Fund, 1981), 593-94.

88. Pagden, Lords of All the World, 7.

89. Constant, “The Spirit of Conquest,” 53.

90. Quoted in Edward W. Said, Orientalism (London: Penguin, 1995), 172.

91. Albert Sarraut, La mise en valeur des colonies françaises (Paris: Payot, 1923), 84-85.

92. Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996), 38. See also Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa (New York: Mariner Books, 1999).

93. Rousseau, Social Contract, Bk. 1, ch. 4, 47.

94. Jean-Jacques Rousseau, “Discourse on the Origins and Foundations of Inequality Among Men,” in The Discourses and Other Early Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 174-75.

95. Immanuel Kant, “The Metaphysics of Morals,” in Practical Philosophy, ed. Mary J. Gregor trans. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), ¶57.

96. Emer de Vattel, The Law of Nations, trans. Thomas Nugent (Indianapolis: Liberty Fund, 2008), bk. II, ¶91, III, ¶201, ¶160-62.

97. Vattel, The Law of Nations, III, ¶193.

98. Kant, The Metaphysics of Morals, ¶58.

99. Ranajit Guha, “A Conquest Foretold,” Social Text 54 (1998), 96-97.