[321] CHAPTER IV.

Of the right of killing enemies in formal War, and of other violence against the person.

I. ON the line of Virgil, Æn. X. 14, in which he says that after the declaration of war it will be lawful to ravage the enemy, Servius Honoratus gives an account of the origin of the Feciales, and the mode of claiming what had been taken from the Romans, and if satisfaction were not given by restoration, declaring war by throwing a spear. Rapere, to ravage, and satisfacere, to restore, were words of a technical comprehensiveness. And thus we learn that a war declared between two nations, or their heads, has certain peculiar and appropriate effects, which do not follow from the nature of war itself: and this agrees with what we have already adduced from the Roman lawyers.

II. 1 But Virgil said licebit, it will be lawful; let us see what that implies. For sometimes that is said to be lawful which is every way right and pious; though something else might be done which is more laudable; as St Paul says, all things (of a certain kind) are lawful for one, but all things are not expedient. Thus it is lawful to marry, even when celibacy is better; it is lawful to marry a second time, though once only is better; it is lawful for a Christian husband to leave his pagan wife (in certain circumstances), but he may keep her: as Augustine says, both are lawful before God, but not alike expedient. Ulpian says, that a seller, after the day appointed for delivering the 323wine, may let it run away; but though he may thus shed it, if he do not, he is rather to be praised.

2 In other cases a thing is said to be lawful, not which is agreeable to piety and duty, but which is not liable to punishment. So among some people fornication is, in this sense, lawful; and among the Egyptians and Lacedæmonians, theft also. So the right of dividing the debtor’s body was lawful by the Twelve Tables. But this use of the word licere, to be lawful, is less proper, as Cicero says: it is not lawful to commit a sin, but we are deceived by an erroneous phrase; for we say that is lawful which is allowed by law: and in another place he says to the judges, you are not to consider what is lawful or allowed, but what is decent and proper. So to kings who are irresponsible everything is said to be lawful. But Claudian rightly says to a king, You are not to consider what is lawful; but what becomes you. And so Musonius.

3 And in this sense, what is lawful is often opposed to what is right (oportet), as in Seneca repeatedly. So Ammianus, Pliny, Cicero. And Cicero opposes fasesse, what is right by nature, to licere, what is allowed by law. And Quintilian opposes jura, lawful rights, to justice.

III. In this latter sense, it is lawful to harm an enemy, both in person and in property; and this, not only for him who is making a just war and who harms the enemy in the way which is allowed by Natural Law, as we have explained; but on both sides, and without distinction: so that he cannot for this reason be punished, if caught in another territory, as a homicide or a thief, nor can war be made on him on the ground of such an act. So Sallust says, All being lawful to the victor by the laws of war.

IV. The reason of this rule among nations was this: that for other nations to offer to pronounce on the right of war between two peoples, would be dangerous for those who interfered, and who might thus be involved in a war belonging to others; as the Massilians said, in the case of Cæsar and Pompey, that they had neither jurisdiction nor power to discern which side was most in the right. And in the next place, it can scarcely be known by external indications, in a just war, what is the proper limit of self-defense, of recovery of property, or of exaction of punishment; so that it is by all means better to leave this to the conscience of the belligerents, than to appeal to extraneous decision. So the Achæans in their oration to the Senate*, ask, In what manner are things done by the laws of war to be called under discussion? Besides this effect of this allowable character of acts, there is another, as regards ownership, of which we shall have to speak hereafter.

V. 1 This right of doing harm to the enemy, extends, first to their persons, as we have many testimonies in Greek authors. He is pure who slays enemies, according to the Greek proverb in Euripides. 324And therefore by the usages of the Greeks, though it was not lawful to wash, or to eat, or to drink, and still less to join in sacred offices, with those who had slain a man not in war; yet it was lawful to do so with those who had slain in war. And perpetually, to slay, is called the right of war. So in Livy, Marcellus, and Alorcus, and so of the Astapenses slain by the laws of war. So Cicero for Deiotarus and for Marcellus; Cæsar to the Hædui; Josephus; Slatius; speak of persons slain, or liable to be slain, by the right of war.

2 That when these writers speak of the right of war, they do not mean a right free from all blame, but such an impunity as I have mentioned, appears from other places. So Tacitus says, In peace, men’s case and desert is regarded; when war comes, the guilty and the innocent fall alike. And elsewhere, The justice of men did not permit them to honour that slaughter, nor the right of war to avenge it. And in the same way we must understand the right of war which Livy says the Achivi did not exercise against Eneas and Antenor, because they had always advised peace. So Seneca, in his epistles, says that The things which, if men did privately, would subject them to capital punishment, when they are done in the general’s cloak, we praise; and Cyprian, When individuals commit homicide, it is a crime; it is called a virtue when done publicly. Impunity is acquired not by innocence, but by the greatness of the mischief done. And again, Rights were accommodated to the convenience of the offenders, and that became lawful which was public. So Lactantius says that the Romans inflicted injuries legitimately, and Lucan speaks of right given to wickedness.

VI. And this right to do such things as allowable, is very comprehensive. For in the first place, it comprehends not only those who actually bear arms, or who are the subjects of him who makes the war, but all who are within the hostile boundaries; as appears by the formula in Livy: Let him be an enemy, and those that are under his protection. This is held, because such persons also may give occasion for fear, which in a continued and extended war, suffices to establish the right of which we speak. This case is different from that of securities [of individuals for the state], which, as we have said, were introduced after the example of burthens imposed to pay the debts of the state; wherefore it is not to be wondered at that much more is allowable in war than in the law of securities. And this is not a matter of doubt as concerns strangers who enter the enemy’s confines when war has been begun and is known.

VII. But those who had gone thither before the war, may, it would seem, by the law of nations, be held for enemies after a moderate time within which they could depart. And thus the Corcyreans, when about to besiege Epidamnus, first gave allowance to strangers to depart, and announced that if they did not, they would hold them for enemies.

VIII. 1 As to those who are truly the subjects of the enemy, that is, from a permanent cause, it is allowable to attack them where325ever they are, by this right of nations, if we regard their persons. For when war is declared against any people, it is declared against the men of that people, as we shewed above; and so in the decree against Philip. And he who is an enemy may be attacked everywhere, as Euripides says. So Marcion, of deserters.

2 Therefore we may slay such persons on our own soil, on the hostile soil, on ground which is no one’s, and on the sea. That it is not lawful to slay them, or do them violence, in a peaceful neutral territory, is a consequence, not of their personal rights, but of the rights of the lord of the territory. For civil societies may establish a rule that, against those who are in any territory, nothing shall be done by violence, except when judicial proceedings have been tried; as we have already quoted from Euripides. And when judicial proceedings are in force, then the deserts of persons are regarded, and there is an end of that promiscuous right of doing harm, which, as we have said, has been established between enemies. Livy relates that seven ships of war of the Carthaginians were in a port belonging to Syphax, who was then at peace both with the Carthaginians and the Romans; and that Scipio came with two ships and might have been destroyed by the Carthaginians before they entered the harbour; but that coming with a brisk wind they struck into the port before the Carthaginians could raise their anchors; and then, in the port belonging to the king, the Carthaginians did not venture to attack them.

IX. 1 To return to the subject; how wide this allowance of doing harm to enemies extends, may be understood from this; that the slaughter of infants and women is allowed to have impunity, as comprehended in that right of war. I will not here adduce the slaying of the women and the little ones of Heshbon (Deut. ii. 34); and what they did to the Canaanites and their allies; for these are the doings of God, who has a more absolute right over men than men have over brutes. But a passage which approaches more nearly to a testimony of the common usage of nations, is that in the Psalms, cxxxvii. 9, Happy shall he be that taketh and dasheth thy little ones against the stones. So Homer.

2 When the Thracians took Mycalessus they put to death the women and children. So the Macedonians did when they took Thebes; the Romans when they took Ilurgis in Spain; Germanicus ravaged the Marsi with fire and sword without mercy to sex or age. Titus exposed the children and women taken at Jerusalem to fight with wild beasts in the public spectacles*. And yet Germanicus and Titus are considered as humane men; so much had that kind of cruelty become customary. And hence we are the less to wonder that old men were slain, as Priam by Pyrrhus.

X. 1 Even captives were not exempted from this liability. No 326law spares or protects a captive. So Pyrrhus in Seneca, Scylla in the Ciris of Virgil; and so in the case in Seneca, where the captive was a woman, Polyxena. So Horace. Donatus says that servi were so called because they were preserved when the law of war was that they should be slain. So the captives at Epidamnus were slain; and five thousand captives by Annibal: and by M. Brutus not a few. So Cæsarianus in Hirtius speaks.

2 Nor is the power of killing such captives excluded by any lapse of time, so far as the Laws of Nations are concerned; though by the Laws of States, this right is restricted, in some places more, in some, less.

XI. We have even examples constantly of persons who offer themselves as suppliants, and are put to death; as seen in the act of Achilles in Homer, and Mago and Turnus in Virgil: which are narrated so as to imply a defense of the right of war which I have mentioned. And Augustine, praising the Goths who had spared those who begged for their lives, and those who took refuge in temples, says, What would have been allowable by the right of war, they held not allowable for them. Nor are those who surrender always received, as in the battle of the Granicus, those were not who were serving under the Persians*; and in Tacitus, the Uspenses praying for pardon for the free persons; which prayer, he says, the victors rejected, that they might rather fall by the right of war. Here again note the right of war.

XII. Even those who have surrendered unconditionally and been received, you may find, in history, put to death; as the rulers of Pometia by the Romans; the Samnites† by Sulla, the Numidians, and Vercingentorix himself, by Cæsar. Indeed this was almost the constant practice of the Romans towards the leaders of their enemies, whether taken or surrendered, that they should be put to death on the day of the triumph: as Cicero tells us, and Livy, Tacitus, and others. Tacitus also relates that Galba ordered a body of men to be decimated whom he had received begging for their lives: and Cecina, having had Aventicum surrendered to him, put to death Julius Alpinus, as the instigator of the war: but left the others to the clemency or cruelty of Vitellius.

XIII. 1 Historians sometimes mention, as the cause of putting to death enemies, especially captives or suppliants, the rule of retaliation, or their obstinacy in resisting: but these causes, as we have elsewhere explained, are rather suasory than justificatory. For retaliation, which is just, and properly so called, must be exercised against the same person who has offended: as may be understood from what we have said of the punishment of accessories. But on the other hand, it commonly happens that what is called retaliation, falls upon those 327who have no share in the blame which is charged. The practice is, that those who are defeated, are made to suffer what they had intended to inflict; and that by such inflictions, the enemy are restrained from overbearing severties. So Diodorus.

2 As for obstinacy in defending one’s own side, no one can think that a case for punishment, as the Neapolitans replied to Belisarius; and this is especially true when the part of each side in the war is either assigned by nature, or by choice for honourable reasons. Indeed this obstinacy is so far from being a crime, that it is a crime if any one leave his post; especially by the old military law of Rome: which admitted no excuse of fear or danger. To quit one’s post is with the Romans a capital crime, says Livy. And therefore it is for his own utility, that a person uses this extreme rigour when he thinks it good: and this rigour is defended by that part of the Laws of Nations of which we now speak.

XIV. The same right has also been used towards hostages; and not those only who have bound themselves by some sort of convention, but those who are delivered up by others. By the Thessalians there were put to death on one occasion two hundred and fifty: by the Romans, the Volsci Aurunci, to the number of three hundred. It is to be noted also, that it was the custom to give boys as hostages, as by the Parthians; and this was done by Simon the Maccabee; also women were given up by the Romans at the time of Porsena; and by the Germans, as Tacitus relates*.

XV. 1 As the Laws of Nations permit many things, (in this way of permitting which we have explained,) which are forbidden by Natural Law; so they forbid some things which are permitted by Natural Law. For him whom it is lawful to put to death, whether we put to death by the sword or by poison, it makes no difference, if we look to Natural Law. It is doubtless more generous to kill, so that he who is killed has the power of defending himself; but this is not due to him who has deserved to die. But the Laws of Nations, if not of all, at least of the best, have long been, that it is not lawful to kill an enemy by poison. This consent had its rise in common utility, that the dangers of war, which are numerous enough, may not be made too extensive. And it is probable that this rule proceeded from kings, whose life may be defended from other causes, better than the lives of other persons; but is less safe than that of others from poison, except it be defended by the scruples of conscience, and the fear of infamy.

2 Livy, speaking of Perseus, calls these clandestine atrocities: so Claudian and Cicero use like expressions. The Roman consuls say that it is required, as a public example, that nothing of the kind be admitted, in the epistle to Pyrrhus which Gellius gives. So Valerius. And when the prince of the Catti offered to procure the death of 328Arminius by poison, Tiberius rejected the offer; thus gaining a glory like that of the ancient generals. Wherefore they who hold it lawful to kill the enemy by poison, as Baldus, following Vegetius, regard mere Natural Law, and overlook the Instituted Law of Nations.

XVI. 1 Somewhat different from poisoning, is the use of poisoned arrows or missiles, as approaching to open force: doubling the means of death, as Ovid says. This was practised by the Getæ, Parthians, Africans, Ethiopians. This, however, is against the Law of Nations, not universal, but of European nations, and those which share in European culture, as John of Salisbury has rightly observed. So Silius speaks of making the weapon infamous with poison.

2 To poison fountains, which must be discovered before long, Florus says, is not only against old rule, but also against the law of the gods; as the Laws of Nations are often ascribed to the gods; nor is it to be wondered, if to diminish dangers, there be some such tacit conventions of belligerents; as formerly in the permanent war of the Chalcidians and Eretrians, it was agreed not to use missiles*.

XVII. But the same is not true of making waters foul and undrinkable without poisoning them; which Solon and the Amphictyons are said to have justified towards barbarians: and Oppian mentions as customary in his time. For that is the same thing as turning away a stream, or intercepting a spring of water, which is lawful both by Natural Law and by consent.

XVIII. 1 It is often made a question, whether it be consistent with the Laws of Nations to send an assassin to put to death an enemy. But we must make a marked distinction between assassins who violate express or tacit faith; as subjects towards a king, vassals towards a seigneur, soldiers towards their general; those received as suppliants or as guests or as deserters, towards those who have received them; and on the other hand, those who are not bound by any such tie of good faith; as Pepin, the father of Charlemagne, with one attendant passed the Rhine and slew his enemy in his chamber; and Polybius relates that Theodotus the Etolian attempted the like against Ptolemy king of Egypt, a manly deed of daring. Such also is the attempt of Mutius Scævola, praised by historians, which he himself defends, saying, Anenemy I sought to slay an enemy. And Porsena himself saw nothing but courage in the act: Valerius Maximus calls it a brave and pious deed; Cicero praises it.

2 In peril it is lawful to kill an enemy anywhere, not only by Natural Law, but by the Laws of Nations, as we have said above; nor does it make any difference how many they are who do or who suffer in such case. The six hundred Lacedæmonians with Leonidas entered the enemies’ camp, and sought their way to the royal tent. A smaller number might have done the same with equal right. Those were few who laid an ambush for Metellus the consul and slew him: and those 329who were very near stabbing Petilius Cerialis in his bed. Ambrose praises Eleazar because he attacked an elephant which was eminent above the rest, thinking that it carried the king. And not only they who do such acts, but they who procure others to do them, are held blameless by the law of nations. The persons who impelled Scævola to his deed were the old Roman Senators, so admired for their sanctity in war.

3 Nor ought any one to be moved by recollecting, that such persons, when taken, are put to the torture; for that happens, not because they have offended against the Laws of Nations, but because by the same Laws of Nations anything is lawful against an enemy; and each person inflicts on his enemy a heavier or a lighter ill according to his own utility*. And thus spies, whom undoubtedly it is lawful by the laws of nations to send, such as Moses sent, of whom Joshua was one, if taken are subject to the severest inflictions: (as Appian says, It is the custom to kill spies): and this is just in some cases, on the part of those who have a just cause of war; in others, is justified by the allowance which the right of war gives. And if any have been found who would not stoop to use such means, that is to be referred to their magnanimity, and trust in the open force which they can use, not to an opinion of what is just or unjust.

4 But with regard to the assassins whose deed includes perfidy, we are to judge otherwise. For not only do the perpetrators of such deeds act contrary to the Laws of Nations, but also they who use their services. For though in other cases, they who use the services of bad men against enemies are held to offend in the eye of God, but not in the sight of man, that is, not to act against the Laws of Nations; for in these cases, as Plautus says, Custom has drawn law to its side; and as Pliny says, To deceive according to the manner of the time is called prudence; yet this custom has stopped short of the right of murder. For they who make use of the perfidy of others for such purposes, are held to have violated, not only Natural Law, but also the Laws of Nations. This is conveyed in the letter of Alexander to Darius: You carry on an impious war; and though you act with arms in your hands, you bargain for the heads of your enemies. And again: You who have not even observed the rights of war towards me. And elsewhere, He is to be followed to his destruction, not as a regular enemy, but as an assassin or a poisoner. To the same rule is to be referred what is said of Perseus; that he did not make arrangements for a regular war with a royal mind; but used all the clandestine acts of assassins and poisoners. So Marcius Philippus, referring to the same acts of Perseus, that all those acts which were hateful to the gods, he would feel in the sequel of his fortunes. And to the same point tends what Valerius Maximus says: that the killing of Viriatus brought on a double accusation of perfidy:—against his friends, in that he was taken of by their 330hands:—against Servilius Cœpio the consul, because he was the author of this crime, by granting impunity to the perpetrators, and thus did not earn, but buy, a victory.

5 The reason why, in this case, a different rule was made, from that which prevails in other things is, that the dangers which beset eminent persons may not be too extreme. Eumenes said, that he did not believe that any general wished to conquer in such a way that he should establish a very bad example against himself, as Justin relates. And the same writer says that when Bessus had killed Darius, it was considered an example of what might happen to kings, and therefore a common cause of kings. So Œdipus in Sophocles; and Seneca in his tragedy on the same subject. The Roman Consuls wrote to Pyrrhus, It seemed suitable to common example and to good faith that we should not be accessary to your death.

6 And thus in a regular war, or between those who have the right of declaring a regular war, such a practice is not lawful. But out of regular war it is held lawful, also by the Laws of Nations. Thus, when such a plot was laid against Gannascus the traitor, Tacitus will not allow that it was degrading. Curtius says that the treachery of Spitamenes might be deemed less odious, because nothing that was done against Bessus, the murderer of his own king, could seem wrong. Thus also violation of faith in dealing with pirates and robbers is not blameless; but by usage, in consequence of the evil character of those against whom it is committed, it is unpunished.

XIX. 1 The violation of women in war you may perpetually find both allowed and disallowed. Those who allowed it, looked only at the injury done to the person, and judged that it was not incongruous to the laws of war that what belonged to the enemy should be subject to such injury. But others have judged better, who regarded, not only the injury, but the act of uncontrolled lust; and that the act has no tendency either to security or to punishment; and therefore ought to be no more unpunished in peace than in war: and this latter rule is the Law of Nations, not of all, but of the best. Thus Marcellus, before he took Syracuse, is recorded to have provided for the security of chastity, even in the enemy. Scipio says that it concerns both him and the Roman people that nothing which is held sacred anywhere should be violated by them, that is, by the more civilized people. Diodorus says of the soldiers of Agathocles, that they did not abstain from wicked violence against the women; and Elian, when he had related that the women and virgins of Pellene were violated by the victorious Sicyonians, exclaims, Savage is this, O gods of Greece, and shocking even among barbarians, so far as I recollect.

2 And it is fit that this rule should be observed by Christians, not only as part of military discipline, but as part of the Law of Nations: that is, that he who violates a woman, even in war, shall be everywhere liable to punishment. By the Hebrew law, no one could have 331committed such an act with impunity; as may be understood from what is said, Deut. xxi. 14, of marrying a captive and then not selling her, on which place, Bechai, a Jewish master, observes: God willed that the camp of the Israelites should be holy, not given up to fornication and other abominations, like the camps of the heathen. Arrian, when he has narrated that Alexander was captivated with the love of Roxana, adds, that he would not humble her as a captive, but take her in marriage; and praises the deed. Plutarch says of the same act, He did not humble her, but took her to wife like a philosopher. Plutarch relates also that by a decree of the Romans, a certain Torquatus was banished to the island of Corsica for violating a virgin of the enemy.