The Law of War and Peace (1625)
by Hugo Grotius
Moderation with Respect to the Right of Killing in a Lawful War
I. In a lawful war certain acts are devoid of moral justice; a condition which is explained.
1. Not even in a lawful war ought we to admit that which is said in the line,
- He, who refuses what is just, yields all.
Cicero’s point of view is better: ‘There are certain. duties which must be performed even toward those from whom you have received an injury. There is in fact a limit to vengeance and to punishment,” The same writer praises the ancient days of Rome, when the issues of wars were either mild or in accordance with necessity.
Seneca calls those persons cruel who ‘have a reason for punishing, but observe no limit.’ Aristides, in his second speech On Leuctra,, says: ‘Men may, men may indeed be unjust in avenging theme selves, if they carry vengeance beyond measure. He, who in punishing goes so far as to do what is unjust, becomes a second wrongdoer.’ Thus, in the judgement of Ovid, a certain king,
- Avenging himself to excess,
And slaughtering the guilty, guilty himself became.
2. In a speech of Isocrates the Plataeans ask, ‘Whether it is just to exact so severe and unjust penalties for so trivial wrong doings? ‘ The same Aristides, whom we have cited above, in his second oration On Peace, says: ‘Do not merely consider the causes for which you are going to exact punishment, but also who they are from whom the punishment is to be exacted, who we ourselves are, and what is the just limit of punishments.’ Minos is praised in Propertius because,
- Although a victor, just to the foe he was;
and also by Ovid:
- Lawgiver most upright,
He laws imposed upon his conquered foes.
II. Who may be killed in accordance with moral justice.
When it is just to kill – for this must be our starting point – in a lawful war in accordance with moral justice (iustitia interna) and when it is not just to do so, may be understood from the explanations which were given by us in the first chapter of this book.
Now a person is killed either intentionally or unintentionally. No one can justly be killed intentionally, except as a just penalty or in case we are able in no other way to protect our life and property; although the killing of a man on account of transitory things, even if it is not at variance with justice in a strict sense, nevertheless is not in harmony with the law of love. However that punishment may be just, it is necessary that he who is killed shall himself have done wrong, and in a matter punishable with the penalty of death on the decision of a fair judge. But we shall here say less on this point, because we think that what needs to be known has been sufficiently set forth in the chapter on punishments.
III. No one may rightly be killed because of his ill fortune; for example, those who take sides under compulsion.
1. Previously, in discussing suppliants – for there are suppliants in war as well as in peace – we distinguished ‘ill-fortune’ (atuchma) and ‘wrong’ (adikhma). Gylippus, in the passage of Diodorus Siculus which we then quoted in part, asks in which class the Athenians should be placed, in that of the unfortunate or that of the unjust. He declares that they cannot be regarded as victims of ill-fortune, seeing that, of their own accord, and unprovoked by any wrong, they had waged war upon the Syracusans. He concludes that, since of their own initiative they had undertaken the war, they must also in their own persons endure the evils of the war.
An example of the victims of ill-fortune are those who are in the ranks of the enemy without hostile intent, as the Athenians were in the time of Mithridates. Of these Velleius Paterculus speaks thus:
If any one blames the Athenians for this period of rebellion, when Athens was stormed by Sulla, he is indeed ignorant both of the truth and of antiquity. So steadfast was the loyalty of the Athenians to the Romans, that at all times and in every matter the Romans declared that whatever was carried out in good faith was done with Attic loyalty. But at that time, oppressed by the forces of Mithridates, the men of Athens were in a most pitiable condition. While they were in the grasp of the enemy, they were besieged by their friends, and they had their hearts outside the walls while their bodies, by constraint of necessity, were within.
The end of the quotation may seem to have been adapted from Livy; in this author the Spaniard Indibil says that, although his body was with the Carthaginians, his heart was with the Romans.
2. ‘Beyond doubt,’ as Cicero says, ‘all men whose lives are placed in the power of another more often think what he, under whose authority and sway they are, is able to do, than what he ought to do.’ The same author, in his speech For Ligarius, declares: ‘There is a third time, when he remained in Africa after the arrival of Varus; but if that is criminal, it is a crime of necessity, not of will.’ The principle was applied by Julian in the case of the Aquileians, as we learn from Ammianus. This author, after recounting the punishment of a few persons, adds: ‘All the rest departed unharmed; necessity, not intention,’ had driven them into the madness of strife.’
On the passage of Thucydides regarding the Corcyraean prisoners who had been sold, an ancient commentator remarks: ‘He reveals a clemency worthy of the Greek character; for it is cruel to kill prisoners after a battle, especially slaves, who do not wage war of their own will.’ In the speech of Isocrates, already mentioned, the Plataeans assert: ‘We served them ‘ (the Lacedaemonians) ‘not willingly, but under compulsion.’ The same writer says of others of the Greeks: ‘These were compelled to follow their side’ (that of the Lacedaemonians) ‘in body, but in spirit they were with us.’ Herodotus had previously said of the Phocians:’They sided with the Medes, not willingly, but by force of necessity.’
As Arrian relates, Alexander spared the Zelites ‘ because they had been compelled to serve on the side of the barbarians.’ In Diodorus, Nicolaus of Syracuse says in his speech on behalf of the prisoners: ‘The allies are compelled to take the field by the power of those who have authority over them; therefore, as it is fair to punish those who do wrong with intention, so it is right to pardon those who do wrong against their will.’ Similarly, in Livy the Syracusans, in clearing themselves before the Romans, say that they had broken the peace because they were confused by fear and treachery. For a like reason Antigonus declared that he had been at war with Cleomenes, not with the Spartans.
IV. No one may rightly be killed on account of a fault that is intermediate between ill fortune and deceit; the nature of such a fault is explained.
1. But it must be observed that between absolute wrong and unmitigated ill-fortune a mean may often intervene which is composed, as it were, of both elements. In such a case the action cannot be called purely that of a man having knowledge and intent, nor purely that of a man not having knowledge or acting against his will.
2. To this class of actions Aristotle applied the term ‘fault’ (amarthma), which may be rendered in Latin by culpa. Thus, in the fifth book of the Ethics, the tenth chapter, he speaks as follows:
Of those things which we do of our own accord, some we do deliberately, others without premeditation. Those are said to be done deliberately which are done after a certain previous mental consideration; what is done otherwise is done without premeditation. Since, therefore, in human intercourse the infliction of injury may occur in three ways, that which proceeds from ignorance is called a mistake; as when a person has done something not against him whom he had in mind, or has done what he did not have in mind, or not in the way he thought, or not with the expected result; as if some one thought that he was striking not with this instrument, nor this man, nor for this cause, but there happened what he had not intended. An example would be if a man wished to prick, not to wound, or not to do it to this man, or not in this way.
Now when the hurt is done contrary to expectation it will be a mishap. But if the injury could have been in any way expected, or foreseen, and yet is not inflicted with evil intent, there will still be a degree of fault; for he is very near to a fault who has in himself the origin of the action, while he is unfortunate if the origin is outside of him. Whenever a person acts with full consciousness of what he does, yet not after deliberation, we must admit the presence of wrong, as in the acts which men are wont to commit under the influence of anger and similar natural or unavoidable emotions. For those who inflict injury when stirred by anger, and admit their fault, are not cleared from wrong, but yet they are not said to be unjust or wicked. But if any one commits the same act deliberately he will rightly be styled wicked and unjust.
3. Consequently, what is done under the influence of anger is correctly held not to have been done with premeditation. For it is not he who does something from anger, but he who has caused the anger, that started the trouble. Hence it often happens that in trials of this sort the inquiry is directed not to the facts but to other rights of the parties; for anger arises from that which any one thinks has been wrongfully done to him. Therefore the question under discussion is not whether this or that has been done, as in dealing with contracts – for in the case of a contract, unless there has been forgetfulness, the one of the two parties who has not fulfilled his obligation is clearly in the wrong – but the purpose is to discover whether what has been done has been done justly.
Now a person who first plotted treachery did nothing in ignorance; wherefore it is not strange if the one should think that he has been wronged, and the other should not think so. Nevertheless, it is possible that he who in turn inflicts an injury on such a ground should be considered unjust, particularly if he exceeds the rule of equality and proportion in his reprisal. Therefore he is just who acts justly from deliberate.” purpose, although any one may act justly if he merely acts voluntarily, without deliberation.
4. But of the things which are not done on the spur of the moment, some are deserving of pardon, and others not. Deserving of pardon are those which are not only done by ignorant persons, but also done in consequence of their ignorance. If something is done by ignorant persons, yet not because of their ignorance, but from such a diseased mental state as goes beyond the common limits of human nature, it is not deserving of your pardon.
This passage, which is truly notable and has been much used, I have rendered into Latin in its entirety, because in most cases it is not correctly translated and therefore not adequately understood.
5. In interpreting this passage Michael of Ephesus gives as an example of that which could not have been expected the case of one who injured his father when opening a door, and of one who wounded somebody when training himself in throwing the javelin in a deserted spot. As an example of what could have been foreseen, but happens without malice, is the case of him who has thrown his javelin on a public road. The same writer gives as an example of what is done under necessity the case of him who is compelled to do something by hunger or thirst; of what is done from natural emotions are cases of love, grief, fear. He says that something is done through ignorance when one is ignorant of a fact, as if some one should not know that a woman is married. Something is done by one who is ignorant, but not through ignorance, when one, is ignorant of the law. However, to be ignorant of the law is at times pardonable, at times unpardonable; and this agrees very well with the sayings of the jurists.
A passage not unlike this Aristotle himself has in his book on the art of oratory: ‘ Justice demands that we should not treat alike wrongs and faults, nor faults and misfortunes. Now misfortunes are things which could not have been foreseen, and are not committed with evil intent; faults, things which could have been foreseen, yet are not done with evil intent; wrongs, things done purposely and with evil intent.’ The ancients also noted these three things, and in the verse of Homer on Achilles, in the last book of the Iliad, we read:
- Not ignorant is his mind, nor evil, nor imprudent.
6. Marcianus makes a similar division:
Men do wrong either purposely, or on impulse, or by accident. Robbers, who form a band, do wrong purposely; those who resort to blows or to weapons when intoxicated do wrong on impulse; and when in hunting a missile cast at a wild beast kills a man the wrong is done by accident.
The two former classes of wrongs, those done purposely and those done on impulse, are distinguished by Cicero in the following manner: ‘ But in every act of injustice it is of the greatest moment whether the wrong is done from some mental excitement, which is usually brief and temporary, or designedly and upon reflection., For what happens from some sudden impulse is less serious than what is inflicted after meditation and preparation.’ Philo, moreover, in his interpretation of the Special Laws, speaks thus: ‘ The crime is lessened by half where it has not been preceded by long deliberation.’
7. In this class are, in particular, those things which necessity, if it does not justify them, at least excuses. In fact, as Demosthenes says, Against Aristocrates: ‘Impulses arising from necessity prevent deliberation regarding that which ought or ought not to be done. Wherefore these actions must not be judged with too much strictness by those who would judge fairly.’ This view is expressed at even greater length by the same orator in his speech on false testimony, Against Stephanus. Thucydides, Book IV, says:
We may well believe that with deity also there is pardon ready’ for those who do wrong under the constraint of war or some similar necessity. For the altars of the gods are open as a refuge for unintentional faults; and the term injustice is applied to those who are wicked of their own volition, not to those who are driven by extremity to desperate deeds.
In Livy the people of Caere say to the Romans: ‘They should not term counsel what should be called compulsion and necessity.’ Justin writes: ‘The act of the Phocians, although it was condemned by everybody on the ground of sacrilege, nevertheless aroused greater animosity toward the Thebans, who had reduced them to this extremity, than toward themselves.’ Similarly, in the opinion of Isocrates, the person who, to save his life, commits an act of plunder, ‘has necessity as a cloak for his wrongdoing.’ Aristides, in his second speech On Leuctra, says: ‘Hard times give some excuse to those who revolt.’
Regarding the Messenians who had been accused of not having received the exiles from Athens, Philostratus writes as follows ‘Their defense rests on a request for pardon; their excuse is Alexander, and the fear of him which was felt by every part of Greece.’ Such is the man whom Aristotle describes as ‘half bad, but not unjust; for he plotted no evil.’
In his praises of the Emperor Valens, Themistius applies these distinctions to the requirement of our subject as follows:
You have distinguished between wrong, error, and misfortune. Although you are not learning the words of Plato, nor perusing Aristotle, nevertheless in fact you are following their precepts. For you did not hold that equal punishment was deserved by those who had advocated war from the first, those who were later caught in the rush to arms, and those who submitted to him who seemed already to be master of the situation; but the first you condemned, the second you reproved, and the last you pitied.
8. The same author, in another connection, expresses the desire that an emperor in his youth should learn, ‘ What is the difference between misfortune, error, and wrong; and how a king should pity the first, correct the second, and visit with vengeance the last alone.’ Thus, in Josephus, Titus punishes the single leader in a criminal act ‘in reality,’ and his following ‘in speech,’ with mere verbal castigation.
Mere misfortunes neither deserve punishment nor create a liability to restoration of damage. Unjust actions do both. Fault, lying between the two, although it renders the responsible party liable for restitution, yet often does not deserve punishment, especially capital punishment. To this the lines of Valerius Flaccus are applicable:
- If fortune cruel, kin to fault, o’ertakes
Those ill-starred ones whose hands are stained with blood
Against their will, their conscience vexes them
In divers ways, and in their idle hours
Their deeds torment them.
V. Those who are responsible for a war are to be distinguished from those who follow them.
The counsel of Themistius, who warns us that we must distinguish between those who were responsible for a war and those who followed the leadership of others, is supported by numerous historical examples. Herodotus relates that the Greeks exacted punishment from those who instigated the Thebans to desert to the Medes. So too, as Livy relates, the leaders of the revolt of Ardea were beheaded. In the same author, Valerius Levinus, ‘ after the capture of Agrigentum, scourged and executed the leaders, but sold the rest of the people and the booty.’ In another passage Livy says: ‘The surrender of Atella and Calasia was accepted; and there also those who had been in control were punished.’ In still another passage: ‘Since those responsible for the revolt have received the punishment they deserved from the immortal gods and from you, conscript Fathers, what do you wish should be done with the innocent populace? ‘ ‘At length they were pardoned, and were granted citizenship, with the purpose,’ no doubt, as he elsewhere says, ‘that the punishment might remain where the guilt arose.’ In Euripides, Eteocles the Argive is praised because
- When he was judge, the culprit bore the blame,
And not his native city, which ofttimes
Bears the reproach for misdeeds of the ruler.
The Athenians, according to Thucydides, repented of their decree against the inhabitants of Mitylene, ‘ that they should put to death’ the whole city rather than merely the instigators of the revolt.’ Diodorus relates that Demetrius, after taking Thebes, executed only the ten persons responsible for its defection.
VI. With regard to those who are responsible for a war we must distinguish between causes which may be and those which may not be approved.
1. Further, in considering those who are responsible for a war, we must distinguish between the causes of their action; for there are some causes which are not indeed just, but still are such that they may deceive persons who are by no means wicked. The author of the Ad Herennium suggests this as a perfectly equitable reason for pardoning: when any one has done wrong not from hatred or cruelty, but moved by a sense of duty and righteous zeal. Seneca’s wise man ‘will dismiss his enemies safe and sound, at times even with praise, if they have taken the field on honorable grounds, on behalf of loyalty, a treaty obligation, or liberty.’
In Livy the people of Caere seek pardon for their error because they gave aid to their kinsmen. The Phocians, Chalcidians, and others, who had supported Antiochus on the ground of a treaty, received pardon from the Romans. Aristides, in his second speech On Leuctra, says that the Thebans, who had followed the leadership of the Lacedaemonians against the Athenians, ‘had shared in an action unjust indeed, but one which they could cloak with some plea of justice, that of loyalty to the heads of their league.’
In his first book On Duties Cicero says that we must spare those who were not cruel, not inhuman, in war; then, that wars, in which the prize is glory of empire, should be waged with less bitterness. In this sense King Ptolemy informed Demetrius that ‘They were, fighting not for existence, but for empire and glory.’ In Herodian, Severus says: ‘When we waged war against Niger, we had not in fact such specious grounds for enmity; for each of us with equal ambition sought to secure for himself the principate, which lay open to all and was still an object of dispute.’
2. Often there occurs what we find stated in Cicero regarding the war between Caesar and Pompey: ‘There was some uncertainty; there was a contest between the most eminent generals; many were in doubt as to what it would be best to do.’ The same author says elsewhere: ‘ Even if we are guilty of some fault arising from human error, we are certainly guiltless of crime.’ Evidently, as in Thucydides, those acts are said to deserve pardon which are done, ‘not from wickedness, but rather from an error of judgement.’
Cicero says also of Deiotarus: ‘He did not act from hatred of you, but he went astray through a common error.’ Sallust writes in his Histories: ‘ Of the rest of the crowd, after the fashion of a mob rather than prudently, the one followed the other as wiser than himself.’ What Brutus wrote with regard to civil wars might, I should think, well be referred to most other wars: ‘More zeal should be shown in preventing them than in giving vent to wrath against the vanquished.’
VII. Punishment may often be remitted justly even to enemies who have deserved death.
1. Even where justice does not demand the remission of punishment, this is nevertheless often in conformity with goodness, with moderation, with highmindedness. ‘The greatness of the Roman people has been augmented by pardoning,’ says Sallust. From Tacitus we have: ‘We ought to make use of as great kindness towards suppliants as tenacity against an enemy.’ Seneca says: ‘It ‘is characteristic of wild beasts, though not of the higher types, to bite and worry those that have been struck down. Elephants and lions pass by what they have thrown over.’ These words of Virgil are often timely:
- Not here undone the Trojan’s victory,
Nor will one life decide so great an issue.
2. On this point there is a notable passage in the fourth book of the Ad Herennium:
Our ancestors did well in establishing this practice, not to put to death any king whom they had made prisoner in war. Why so? Because it was unjust to take advantage of the opportunity which fortune had given us for the punishment of those whom that same fortune had but shortly before placed in a most exalted station.
What of the fact that he led an army against us? I cease to recall it. Why so? Because a brave man holds as enemies those who strive for victory, but considers as men those who have been conquered, in order that courage may lessen war, and humaneness enrich peace. But if he had conquered, he would not have done the same, would he? Why then do you spare him? Because I have been accustomed to despise such folly, not to imitate it.
If you take this with reference to the Romans (a point that is uncertain, since this writer uses foreign and imaginary examples), it is in direct opposition to what we find in the panegyric addressed to Constantine, the son of Constantius:
He may be more prudent who binds his adversaries to him by pardon, but he is, stronger who tramples upon those that are angry. You, Emperor, have received that ancient trust of the Roman Empire, which was wont to exact the vengeance of death from the captured leaders of the enemy. In those days captive kings, after having adorned the chariots of those celebrating triumphs, from the city gates to the forum, as soon as the victorious general began to turn his chariot toward the Capitol were dragged of to prison and put to death. Perseus alone, at the personal intercession of Paulus, who had received his surrender, escaped the severity of this law. The rest, chained in dark dungeons, furnished an object lesson to other kings,’ that they would find it preferable to cultivate the friendship of the Romans rather than to rouse their sense of justice.
But this writer also speaks too sweepingly. Josephus, in his account of the death of Simon Barjoras, makes the same point regarding the severity of the Romans, but he is speaking of leaders like Pontius the Samnite, not of those who had the title of king. The substance of his narrative in translation is as follows:
The end of the triumph came after the arrival at the temple of Jupiter on the Capitoline hill; for the ancient custom of the state required that victorious generals should wait there until the death of the leader of the enemy should be reported to them. This leader was Simon, son of Joras, who was led among the captives in the triumphal procession; then, with a noose about his neck he was dragged into the forum, being meanwhile scourged by his guards. It is the Roman custom to exact punishment in this place’ from those who have been condemned of capital offences. When it was reported that Simon was dead, there followed the announcement of favorable omens and then sacrifices.
Cicero gives an almost identical account in the passage on punishments in his speech Against Verres.
3. Of commanders who met such a fate we have numerous examples; of kings, a few, as Aristonicus [Aristobulus], Jugurtha, Artabasdus. But yet, besides Perseus, Syphax, Gentius, Juba, and, in the time of the Caesars, Caractacus, and others, escaped such punishment, so that it appears that the Romans took into account both the causes of war and its manner of conduct, although Cicero and others admit that when victorious they were unjustly severe. So in Diodorus Siculus, Marcus Aemilius Paulus, in the case of Perseus, gives good advice to the Roman senators when he says: ‘ If they had no fear of men, yet they should fear the divine vengeance which hangs over those that make too insolent a use of victory.’ Plutarch records a that in the wars among the Greeks even the enemies of the Lacedaemonians did no violence to their kings, through respect for the royal dignity.
4. An enemy therefore who wishes to observe, not what the laws of men permit, but what his duty requires, what is right from the point of view of religion and morals, will spare the blood of his foes; and he will condemn no one to death, unless to save himself from death or some like evil, or because of personal crimes which have merited capital punishment. Furthermore, from humanitarian instincts, or on other worthy grounds, he will either completely pardon, or free from the penalty of death, those who have deserved such punishment.
The same Diodorus Siculus, whom I have mentioned, has an excellent statement: ‘ The storming of cities, the winning of battles, and all other successes in war, are more often due to fortune than to valor. But for those in the highest authority to show mercy to the vanquished is the work of wisdom alone.’ In Curtius we read: ‘Although Alexander could justly have been angry with those who were responsible for the war, still he gave pardon to all.’
VIII. One must take care, so far as is possible, to prevent the death of innocent persons, even by accident.
Again, with regard to the destruction of those who are killed by accident and without intent, we must hold fast to the principle which we mentioned above. It is the bidding of mercy, if not of justice, that, except for reasons that are weighty and will affect the safety of many, no action should be attempted whereby innocent persons may be threatened with destruction. Polybius is of the same opinion as ourselves, and in his fifth book speaks thus: ‘It becomes; good men not to wage a war of annihilation even with the wicked, but to proceed only so far that crimes may be remedied and corrected; and not to involve the innocent in the same punishment as the guilty, but even to spare those who are guilty for the sake of the innocent.’
IX. Children should always be spared; women, unless they have been guilty of an extremely serious offence; and old men.
1. With these principles recognized, the defining of provisions to cover the more special cases will not be difficult. ‘ Let the child be excused by his age, the woman by her sex,’ says Seneca in the treatise in which he vents his anger upon anger. In the wars of the Jews God himself desired that women and children be spared even after peace had been offered and rejected – apart from a few peoples that were excepted by a special law, and against whom the war was not a war of men, but of God, and was so called. When He desired that the women of the Midianites should be put to death because of their particular crime, he excepted the maidens who were virgin. Indeed when He had sternly threatened the Ninevites with destruction for their very heinous crimes He suffered Himself to be diverted by compassion for the many thousands of the age which would be ignorant of the distinctions of right and wrong.
In Seneca there is a point of view which resembles this: ‘Does any one become angry with children whose age is not yet able to comprehend distinctions?’ Also in Lucan:
- For what crime could little ones have deserved death?
If God has so done and so ordained – He who is able to kill justly any persons of whatever age or sex without cause, seeing that He is the Giver and Lord of life – what right have men, to whom He has assigned no right over men, to do anything not necessary for the preservation of human safety and human society?
2. In the first place, with regard to children we have the judgement of those peoples and ages over which moral right has exerted the greatest influence. ‘We have arms,’ says Camillus in Livy, ‘ not against that age which is spared even when cities are taken, but against men in arms.’ He adds that this has a place among the laws of war, that is the natural laws.
In dealing with the same incident Plutarch says: ‘Among good men even war has certain laws.’ Note here the phrase ‘ among good men,’ that you may distinguish this law from the law which is based on custom and impunity. Thus Florus says that a certain course of action was inevitable, if honor was not to be violated. In another passage of Livy we read: ‘An age from which even enraged enemies would withhold their hands ‘; in still another, ‘Their cruel rage led them to slay even the infants.’
3. Again, that which is always the rule in respect to children who have not attained to the use of reason is in most cases valid with regard to women. This holds good, that is, unless women have committed a crime which ought to be punished in a special manner, or unless they take the place of men. For they are, as Statius says, ‘a sex untrained and inexperienced in war.’ When Nero in the tragedy calls Octave a foe, the prefect replies:
- Does a woman receive this name?
In Curtius Alexander says: ‘ I am not accustomed to wage war with prisoners and women; he whom I am to hate must be in arms.’ Gryphus, in Justin, declares that ‘ None of his ancestors, in all their numerous civil and foreign wars, had after a victory ever displayed cruelty to women, whose very sex exempts them from the dangers of war and the savagery of the victors.’ In Tacitus another says that ‘He is not waging war against women, but openly against armed men.’
4. Valerius Maximus calls the cruelty of Munatius Flaccus against infants and women ferocious, and intolerable even to hear about. In Diodorus it is related that the Carthaginians at Selinus slew old men, women, and children, ‘uninfluenced by humane feelings ‘; elsewhere he calls this conduct ‘ cruelty.’ Latinus Pacatus refers to women as’ the sex which is spared by wars.’ Papinius [Statius] has a similar statement about old men:
- Old men, a throng
Inviolate in war.
X. Those also should be spared whose occupations are solely religious or concerned with letters.
1. The same principle is in general to be applied to men whose manner of life is opposed to war. ‘ By the law of war armed men and those who offer resistance are killed,’ as Livy says; that is, by that law which is in harmony with nature. Thus Josephus says that it is right that in war those who have taken up arms should pay the penalty, but that the guiltless should not be injured. When Veii was stormed, Camillus gave orders that the unarmed should be spared.
In this class must be placed first, those who perform religious duties. From ancient times among all nations it has been customary that such men should abstain from the use of arms; and so in turn men refrained from violence toward them. Hence the Philistines, the enemies of the Jews, did not harm the school of the prophets which was at Gaba, as one may see in Samuel 10:5 and10. And so David in company with Samuel fled to another place where there was a similar school, that was removed, as it were, from all harm at the hands of armed forces ( Samuel 19:18). The Cretans, Plutarch tells us, when engaged in internal strifes, refrained from doing any harm to priests, and to those in charge of cremating the dead, whom they called ‘ cremators.’ This explains the force of the Greek proverb, ‘ Not even a fire-bearer was left.’ Strabo notes that in olden times, when the whole of Greece was ablaze with war, the Eleans, as sacred to Jupiter, and those enjoying their hospitality, lived in deep peace.
2. In the same class with the priests are deservedly ranked those who have chosen a similar manner of life, as monks and novices, that is, penitents; these the canons, in accordance with natural justice, order men to spare just the same as priests.
To priests and penitents you may properly add those who direct their energies to literary pursuits, which are honorable and useful to the human race.
XI. Farmers should be spared.
In the second place farmers, whom the canons also include, should be spared. Diodorus Siculus relates with praise of the inhabitants of India that ‘ in wars indeed enemies kill one another, but they leave the tillers of the soil unharmed, for the reason that these render a common service.’ Of the ancient Corinthians and Megarians Plutarch says: ‘ No one harmed the farmers in any way.’ Cyrus ordered that notice be given to the king of the Assyrians ‘ that he was ready to release those who tilled the soil, and not to harm them.’ Of Belisarius Suidas says: ‘He spared the tillers of the soil to such a degree, and exercised so great care for them, that when he was in command none of them at any time suffered injury.’
XII. Merchants and like persons should be spared.
The canon adds merchants; and this provision is to be taken as applicable not only to those who make a temporary sojourn in hostile territory, but also to permanent subjects; for their life also is foreign to arms.
Under this head are included at the same time artisans and other workmen, whose pursuits love peace, not war.
XIII. Prisoners of war also should be spared.
1. To come to those who have borne arms, we have already mentioned the remark of Pyrrhus in Seneca, who says that a sense of shame, that is, respect for what is right, forbids us to deprive a prisoner of his life. We have adduced the similar view of Alexander, which included prisoners with women. We may present also this statement of Augustine: ‘Let necessity, not inclination, cut off the enemy who is fighting. Just as violence is done to him who fights and resists, so pity is now due to the vanquished or captive, especially in the case of him from whom no disturbance of the peace is feared.’
Xenophon writes of Agesilaus: ‘He instructed his soldiers not to punish prisoners of war as guilty of crime, but to guard them as men.’ In Diodorus Siculus we find: ‘All [the Greeks] fight those who resist, but spare the vanquished.’ In the judgement of the same writer, the Macedonians who were under Alexander’ treated the Thebans more harshly than the law of war allowed.’
2. In his history of the Jugurthine War Sallust, having related that youths had been killed after surrendering, says that that was done contrary to the law of war; this is to be interpreted as against the nature of justice and the usage of more civilized peoples. In Lactantius we read: ‘The vanquished are spared, and room is found for mercy in the midst of strife.’ Tacitus praises Antonius Primus and Varus, the Flavian generals, because they had vented their rage on no one except in battle. Aristides says: ‘It befits men of our character to constrain with arms those who resist, but to treat leniently those who have been overthrown.’
In regard to prisoners the prophet Elisha addresses the king of Samaria as follows: ‘Wouldst thou smite those whom thou hast taken captive with thy sword and thy bow? ‘ In the Children of Hercules by Euripides, when the herald inquires:
- Then does your law forbid to slay a foe?
the chorus replies:
- Yes, one whom Mars has suffered to survive the fray.
In the same play the captive Eurystheus says:
- The hands which me shall slay will not be guiltless.
In Diodorus Siculus, the Byzantines and Chalcedonians,, because they had put to death a large number of prisoners, are branded with this characterization: ‘ They perpetrated crimes of extraordinary cruelty.’ The same writer elsewhere speaks of sparing prisoners as ‘ a law common to all’; those who do otherwise, he says, beyond question do wrong. To spare prisoners is commanded by the nature of goodness and justice, as we just now heard Seneca say in his philosophical treatises. We see that in history those are praised who, when they might have been burdened or endangered by an excessive number of prisoners, preferred to release all rather than kill them.
XIV. The surrender of those who wish to yield upon fair terms should be accepted.
1. For the same reasons the surrender of those who yield upon condition that their lives be spared ought not to be rejected, either in battle or in a siege. Thus Arrian says that the slaughter by the Thebans of persons who had surrendered was not in accordance with Greek custom, ‘not a Hellenic killing.’ Likewise Thucydides in his third book says: ‘You have taken us into your power willingly and with outstretched hands. It is the Greek custom not to kill such persons.’ In Diodorus Siculus, the senators of Syracuse declare ‘It is worthy of a noble mind to spare the suppliant.’ Similarly Sopater: ‘It is customary to spare suppliants in times of war.’
2. In the case of besieged cities the acceptance of surrender was the rule among the Romans before the battering-ram had shaken the wall. Caesar informed the Adratuci that he would save their city if they would surrender before the ram should have touched the wall. The custom even now obtains in the case of unfortified places, before cannon fire is opened; and, in the case of more strongly fortified places, before an assault is made upon the walls. But Cicero, looking not so much to what is done as to what is right according to nature, declares himself upon this point as follows: ‘You must both be merciful to those whom you have overcome by force, and accept the surrender of those who lay down their arms and take refuge in the good faith of generals, even though the battering-ram has already battered the wall.’
The Jewish interpreters note that it was a custom among their ancestors that, when they were besieging a city, they would not completely encircle it, but would leave a sector open for those who wished to escape,’ in order that the issue might be determined with less bloodshed.
XV. Those also who have surrendered unconditionally should be spared.
The same sense of justice bids that those be spared who yield themselves unconditionally to the victor, or who become suppliants. ‘To butcher those who have surrendered is savage’ is the judgement of Tacitus. Likewise in the case of the Campsani, who had surrendered to Marius, Sallust, after relating that those who had reached the age of puberty were slain, adds that this was a crime against the law of war, that is, the law of nature. The same author says elsewhere: ‘ Not armed men were slain in battle, according to the law of war, but. suppliants, after battle.’
In Livy, as we have said already, ‘By the law of war armed men,, and those who resist, may be slain’; in another passage we read, ‘who, contrary to law and right, had made war upon those that had surrendered.’ Effort should be directed to this, that men should rather be driven to surrender through fear, than that they should be slain. Praise is given to the conduct of Brutus, who ‘did not permit a charge to be made upon his opponents, but surrounded them with cavalry, ordering that they be spared, on the ground that they would soon be on his side.’
XVI. What has been stated is true, provided that no serious crime ha. preceded; how this is to be understood.
1. Against these precepts of justice and the law of nature frequently exceptions are offered, which are by no means just; as, for example, if retaliation is required, if there is need of inspiring terror, if too determined a resistance has been offered. Yet he who recalls what has previously been said in regard to valid reasons for putting to death will easily perceive that such exceptions do not afford just grounds for an execution.
There is no danger from prisoners and those who have surrendered or desire to do so; therefore in order to warrant their execution it is necessary that a crime shall have been previously committed, such a crime, moreover, as a just judge would hold punishable by death. And so we sometimes see anger vented upon prisoners or upon those who have surrendered, or a surrender upon guarantee of life refused, if any who were convinced of the injustice of a war have still remained in arms; if any have injured the good name of their enemies with monstrous slanders; if they have violated their plighted word, or another right of nations, such as that of ambassadors; if they were deserters.
2. But nature does not sanction retaliation except against those who have done wrong. It is not sufficient that by a sort of fiction the enemy may be conceived as forming a single body; this may be understood from our foregoing discussion on the sharing of punishments. In Aristides we read: ‘ Is it not absurd to wish to imitate, as if they were right, the things which you attack and say it is wicked to do? ‘ Plutarch accuses the Syracusans on this ground, that they slew the wives and children of Hicetas for the sole reason that Hicetas had killed the wife, sister, and son of Dion.
3. Even the advantage, which is anticipated for the future from frightfulness, does not suffice to give the right to kill; but if the right already exists it may be among the reasons for not waiving the right.
4. Furthermore a quite obstinate devotion to one’s own party, provided only that the cause is not altogether dishonorable, does not deserve punishment, as the Neapolitans claim in Procopius. Or, if such devotion is punished in any way, the penalty should not be carried so far as death; for no just judge would so decide. When, in a certain town, which had resisted with unusual fierceness, Alexander had ordered that all above the age of puberty should be slain, he seemed to the Hindus to be waging war after the manner of brigands; and dreading the effect of such a reputation the king began to make a milder use of victory.
The same Alexander did better in wishing to spare certain inhabitants of Miletus, ‘because he saw that they were noble and faithful to their cause,’ to cite the words of Arrian. Phyto, the commander of the people of Rhegium, when hurried to torture and death by Dionysius because of his too obstinate defense of the city, cried out that he was being punished for refusing to betray the city and that the deity would in a short time exact retribution for the mistreatment. Diodorus Siculus calls this punishment wicked, ‘lawless punishment.’
I am greatly pleased with the prayer which is found in Lucan:
- Be he the conqueror, who sees no need
To draw the ruthless sword against the vanquished,
Who does not think an impious deed was done,
Because his countrymen took arms against him,
provided, nevertheless, that under the name of countrymen we under. stand not those of this or that district, but fellow-citizens of that common society which embraces all mankind.
5. Much less even is slaughter justified by resentment at some loss that has been sustained, as we read that Achilles, Aeneas, and Alexander avenged their friends with the blood of prisoners or of those who surrendered. Appropriately, therefore, Homer chants this verse:
- An evil deed he pondered in his heart.
XVII. It is right to spare those who are guilty, if their number is very great.
Even where the crimes are such that they may seem worthy of death, it will be the part of mercy to give up something of one’s full right because of the number of those involved. Such clemency, we see, began with God Himself; for He desired that the Canaanites and their neighbors, by far the most wicked of peoples, should have the offer of a peace, which would grant them their lives upon condition of their payment of tribute. Here applies the saying of Seneca: ‘ The severity of the general is directed against individuals, but pardon is necessary where the whole army has deserted. What takes away a wise man’s anger? The crowd of wrongdoers.’ Pertinent also are these verses of Lucan:
- Famine, the frenzy of the sea, and swift disaster,
Or pestilence of earth and sky, or war’s slaughtering,
Have oft laid low so many youths in hateful death,
But never punishment.
‘The drawing of lots was devised that an undue number might not suffer punishment,’ says Cicero. Sallust says to Caesar: ‘Let no one summon you to cruel punishments or harsh judgements, by which the state is more afflicted than remedied.’
XVIII. Hostages should not be put to death unless they have themselves done wrong.
1. What decision according to the law of nature should be rendered in regard to hostages may be gathered from what we have said already. In former times it was commonly believed that each person had over his own life the same right which he had over other things that come under ownership, and that this right, by tacit or expressed consent, passed, from individuals to the state. It is, then, not to be wondered at if we read that hostages who were personally guiltless were put to death for a wrong done by their state, either as though done by their individual consent, or by the public consent in which their own was included. But now that a truer knowledge has taught us that lordship over life is reserved for God, it follows that no one by his individual consent can give to another a right over life, either his own life, or that of a fellow-citizen.
Consistently with this point of view Agathias relates that to the good general Narses it seemed atrocious to exact punishment from innocent hostages. Other writers say the same of other generals. They cite also the example of Scipio, who said that he would not be severe with innocent hostages, but with the individuals themselves who had been guilty of defection,” and that he would exact punishment not from an unarmed foe, but from a foe in arms.
2. Furthermore some of the modern jurists, men not without standing, say that such agreements are valid if they are confirmed by custom. This I admit, if by right they mean mere freedom from human punishment, which in the discussion of this subject often passes under such a name. If, however, they consider that those who take the life of any one on the justification of an agreement alone are exempt from wrongdoing, I am afraid that they are both deceived themselves and by their dangerous authority deceive others.
It is clear that if he who comes as a hostage is, or previously was, of the number of great criminals, or has subsequently broken his pledge given in an important matter, it may be that his punishment will not be unjust.
3. But when Cloelia, who had come as a hostage, not of her own accord but by the command of the state, made her escape by swimming the Tiber, her ‘courage was not only pardoned, but even honored by the Etruscan king,’ to use the words of Livy in his account of the incident.
XIX. All useless fighting should be avoided.
This remains to be added, that all engagements, which are of no “use for obtaining a right or putting an end to a war, but have as their purpose a mere display of strength, that is, as the Greeks say, ‘an exhibition of strength rather than a combat against the enemy,’ are incompatible both with the duty of a Christian and with humanity itself. Consequently rulers, who must render account of the useless shedding of blood to Him in Whose name they bear the sword, should strictly forbid such combats. In fact, Sallust praised the generals who achieved victory without staining their army with blood. Tacitus says of the Chatti, a people of known courage: ‘Raids and chance encounters are rare among them.’