[371] CHAPTER XI.

Restraints as to the Right of killing in War.

I. 1 [We have been speaking of the restraints which the injustice of a war imposes;] but even in a just war, we are not to say with Lucan, He who denies justice, gives everything. Better Cicero, There are duties even against those who have injured us. There is a limit to punishment and revenge. And he praises the old times of Rome, when the event of a war was either mild or necessary. So Seneca. So Aristides says that over-punishment makes a new injury; and so Ovid.

2 So the Plateans in Isocrates, and so Aristides, speak of a measure of punishment proportioned to the offense. So Propertius and Ovid.

II. What killing is just in war, according to internal justice, we may see from what has been said. A man may be killed of purpose, or not of purpose. No one can be justly killed of purpose, except either as a just punishment, or so far as we cannot otherwise defend our life and property. And oven this step, of killing a man for perishable human property, is at variance with the law of charity. In order that punishment may be just, it is necessary that he who is killed should have himself offended, and so offended, that a just judge would think death a fit punishment. Of this we have spoke, in treating of punishment.

372 III. 1 Above, in speaking of suppliants (for there are such in war as in peace, namely, those who ask for mercy,) we distinguished misfortune and misdeed. So Gylippus considers to which class the Athenians belong, and says they were not men unfortunate, but unjust, and must therefore bear the evils of war. Of unfortunate persons, examples are those who are with the enemy, without being hostile in mind, as the Athenians at the time of Mithridates. So Paterculus describes them, applying what Livy says, of Indibilis the Spaniard, that his body was with the Carthaginians, his mind with the Romans.

2 So Cicero speaks of faults of necessity, as opposed to those of will: so Julianus, the commentator on Thucydides, says, that according to the mild spirit of the Greeks the Corcyrean captives were spared on this ground. The Plateans plead the same excuse in Isocrates; and the other Greeks. So Herodotus of the Phocians. So Alexander spared the Zelites. So Nicolaus of Syracuse, pleading for the captives. So the Syracusans in Livy. So Antigonus said that he made war on Cleomenes, not on the Spartans.

IV. 1 But we must note that, between a clear injury and a mere misfortune, there is a middle case, composed of both; so that the act can neither be said to be that of one simply knowing and willing, nor of one ignorant or unwilling.

2 This is what Aristotle calls ἁμάρτημα, and we may call culpa, a fault. The passage is in Eth. v. 10. There are three cases in which damage may be done to men: by misfortune, by fault, and by injury. But injury may be done, willingly indeed, but not deliberately, as when it is done through sudden anger.

3 Anger at supposed wrong it some excuse.

4 What is done through ignorance is excusable.

5 Michael Ephesius comments, and explains, this passage. So Aristotle in his Rhetoric.And the ancients quote Homer to the same effect.

6 A similar division is given in Marcian, of delicts proposito, im- petu, casu. The first two are distinguished by Cicero. So Philo says, that without purpose prepense, the deed is reduced to half.

7 The principal examples are those which necessity, if it do not justify, at least excuses. So Demosthenes; Thucydides; the Cærites for themselves; Justin for the Phocians; Isocrates; Aristides; Philostratus for the Messenians. So Aristotle speaks of a man half wicked, not unjust, for the act was not deliberate. Themistius uses this difference in praise of Valens.

8 The same writer elsewhere presses it upon the young Emperor. So in Josephus, Titus makes a difference.

Mere misfortunes neither deserve punishment, nor oblige to recompense of loss: unjust actions do both. The intermediate case, fault, is liable to restitution, but often does not merit punishment, especially capital punishment. So Valerius Flaccus.

373 V. Themistius, in the passage above quoted, praises Valens for making a difference between the authors of the war, and their followers: and this is often exemplified in history. So the Greeks, in dealing with the Thebans for joining the Medes. So the leaders of the sedition at Ardea were put to death: so at Agrigentum, Atella, and Calasia; and elsewhere. So Eteocles is praised in Euripides; and the Athenians, for this reason, repented of their decree against the Mitylenians. So Demetrius acted at Thebes.

VI. 1 But also, in the authors of the war, the causes of the act are to be distinguished; for there are some which, though not just, may impose on those who are not bad men. The writer to Herennius puts this as a strong ground of excuse. So Seneca; so the Cærites plead in Livy; Be the Phocians and others were pardoned by Rome; so Aristides pleads for the Thebans.

2 Cicero says that those are to be spared, who have fought without cruelty; and that wars for glory should be carried on less bitterly. So Ptolemy tells Demetrius that they were to fight, not for existence, but for glory and empire. So Severus says of Niger.

3 Often, as Cicero says of the war between Cæsar and Pompey, the case was obscure, and that many doubted which was the better side. And of himself he says, Wemay not be free from human fault, but we are free from wickedness. So he says also of Deiotarus. So Sallust says of the multitude. What Brutus wrote of the civil wars, may be applied to other wars: That they who raised them were more proper objects of anger than they who were conquered in them.

VII. 1 Even when justice does not require us to spare men’s lives in war, it is often agreeable to goodness, to moderation, to magnanimity. So Sallust says of one, that he increased the greatness of the Roman people by mercy. Tacitus recommends keenness against the enemy, kindness towards the suppliant. Seneca says that it is only the baser wild beasts which tear them that are down; elephants and lions pass them by. So Virgil, of the Trojan feeling.

2 There is a passage to this effect in the book ad Herennium, which praises the Romans for sparing those they had vanquished. But to this, other passages may be opposed, as the panegyric of Constantine. But this again is too lax. Josephus gives a like example of the Roman severity, speaking of putting to death Simon Barjoras: but he speaks of leaders like Pontius the Samnite, not of kings. Cicero, in his Verrine Oration, says the same.

3 With regard to this putting to death leaders, there are everywhere examples. Some there are of kings, as Aristonicus, Jugurtha, Artabasdus, [Gronovius notes that the two former were spurious kings; and that the last was put to death at Alexandria, M. Antonii scelus, as Tacitus says]. But besides Perseus, others, as Syphax, Gentius, Juba, and at the time of the Cæsars, Caractacus, escaped this punishment; so that it appears that the Romans regarded the cause of the war, and the mode of conducting it by the enemy: and yet they 374were too harsh in victory, as Cicero and others acknowledge. And M. Æmilius Paulus, in pleading for Perseus, warns the Roman Senators to fear Nemesis, the divine vengeance, if they use victory insolently. Plutarch notes that, in the Greek wars, even the enemies did no violence to the Lacedæmonian Kings, out of reverence for their dignity.

4 An enemy, therefore, who considers, not what human laws permit, but what is his duty, what is righteous and pious, will spare hostile blood: and will never inflict death, except either to avoid death, or evils like death, or to punish crimes which are capital in desert. And even to some who have deserved that, he will remit all, or at least, capital punishment, either out of humanity, or for some other plausible causes. So Diodorus says that victory depends on fortune, but mercy in victory on virtue. So Curtius, of Alexander.

VIII. With regard to those who are killed without its being in­tended, we must hold that if justice do not require, at least mercy does, that we should not, except for weighty causes tending to the safety of many, undertake anything which may involve innocent persons in destruction. So Polybius.

IX. 1 Having settled these principles, it will not be difficult to lay down more special rules.

Children are excused by their age, women by their sex, as Seneca says, in the books in which he writes, angrily, Against Anger. God himself, even when peace had been offered and refused, directed that women and infants were to be spared, except in a few cases, in which the war was the war of God, not of men, and was so called. And when he directed the Midianitish women to be slain for their crime, he excepted the virgins. And when he had threatened Nineveh with destruction, he was moved to change his purpose, (Jonah iv. 11,) by the consideration that there were so many persons who could not distinguish right from wrong. So Seneca and Lucan speak of children. And if God did and directed thus, the Giver and Lord of life, what should men do, to whom he has given no authority over men, except what is necessary to preserve the safety and society of men?

2 With regard to Children, we are supported by the judgment of the most moral times and peoples. So Camillus, in Livy; Plutarch, who says there are, among good men, certain laws of war: where note apud bonos, among good men, that you may distinguish those laws from the customary rights of war, which only mean impunity. So Florus: and Livy again.

3 The rule of mercy which obtains always in infants, obtains mostly in Women, (except they have incurred punishment by some special act, or assumed masculine offices). For the sex is unfit for arms: Does enemy apply to women? is asked in the tragedy. So Alexander in Curtius; Gryphus in Justin; and another in Tacitus, neque adversus feminas: [but it is feminasgravidas in the passage. J. B.]

4 Valerius speaks of the savage cruelty of Munatius Flaccus to women and children, intolerable to hear of. So the Carthaginians 375are said to have put to death old men, women, children, without feeling. This is cruelty. So Pacatus and Papinius.

X. 1 The same rule is to be laid down generally, for Men whose kind of life is repugnant to arms. Slaughter of men armed and resisting is the law of war, says Livy; that is, by Natural Law. So Josephus says, that it is reasonable that they who have taken arms should be punished in battle, but that Non-combatants are not to be hurt. So Camillus, in storming Veii, directed the unarmed to be let alone.

In this class, first we must place Those who perform sacred offices. For that these abstain from arms, is an ancient custom of all nations; and in old time, they were not molested. So the Philistines did not hurt the school of the prophets (1 Sam. x. 5 and 10) at Gaba, where they had a garrison. And so (1 Sam. xix. 18) David and Samuel took refuge at Naioth, where there was also a school of the prophets. Plutarch relates that the Cretans, in their intestine wars, abstained from injuring the priests, and the buriers of the dead. Hence the Greek proverb, not even the pyre-lighter was left, when all wore killed. Strabo notes that in ancient times, when all Greece was in disturbance with arms, the Eleans, as sacred to Jupiter, and they who were under their hospitality, lived in profound peace.

2 Along with Priests, are properly ranked in this matter, all who have chosen a similar course of life, as Monks, and Novices, that is, Penitents; and these, the Canons direct, are to be spared, as well as priests; following, in this, natural equity. Add to these, Those who give their labour to honourable literary studies, useful to mankind.

XI. Next add Husbandmen, whom also the Canons include. Diodorus, praising the Indians, says that in their wars, the warriors fight, but they leave the cultivators unmolested, as the common benefactors of both sides. So Plutarch, of the old Corinthians and Megareans. So Cyrus proposed to the king of Assyria. So Belisarius acted, as Suidas says.

XII. The Canon adds Merchants, which is to be understood, not only of those who make a temporary residence in the hostile country, but also of permanent subjects. For their life also is foreign to arms. And under this name are included Artisans, and Workmen, whose gain requires peace, not war.

XIII. 1 To come to those who have borne arms, we have already quoted the speech of Pyrrhus in Seneca, who says that we are prevented, pudore, by decency, from putting a captive to death. We adduced a similar opinion expressed by Alexander, who conjoins captives with women. We may add Augustine, Xenophon, Diodorus Siculus.

2 When Sallust says, that all the men were slain after the surrender, he adds, contrary to the Laws of War: that is, contrary to the manner of humane nations. So Lactantius. So Tacitus of Antonius and Varus. So Aristides.

Elisha the prophet says to the king of Samaria, 2 Kings vi. 22: 376Wouldest thou smite those whom thou had taken captive with thy sword and with thy bow? So in Euripides. So the Byzantines and Chalcedonians are said to have done acts of extraordinary cruelty, in killing captives. And to spare captives, is a common law. So Seneca, already quoted. And when a general, embarrassed by the number of his captives, dismisses them, he is praised in history.

XIV. 1 Hence surrender on condition of life is accepted, both in a battle and in a siege. Hence Arrian says that the slaughter of the Thebans, who had surrendered, was an un-Greek massacre. So Thucydides, You received us, holding out our hands as surrendering: to kill such is not the Greek custom. So the Syracusans in Diodorus; and Sopater.

2 In besieging towns, the Romans did this, before the batteringram had struck the walls. So Cæsar announces to the Aduatici. And this rule holds at the present day for weak places, before the fire of artillery begins; in strong places, before a storm is ordered. Cicero, looking at equity, says, those who surrender are to be received, even if the ram have struck the wall. The Hebrew commentators note that their countrymen, in their sieges, were wont not to carry the works quite round the city, but to leave an opening for escape, to avoid the shedding of blood.

XV. The same equity commands us to spare those who surrender unconditionally, or ask their lives. To massacre those who surrender, is savage, says Tacitus. So Sallust of Marina; and Livy.

And pains are to be taken to make them rather surrender through fear, than be slain. Brutus is praised that he ordered his adversaries to be turned in flank, not charged in front, as being soon his own.

XVI. 1 Exceptions, by no means just, to these precepts of equity and natural justice are often alleged:—Retaliation:—the necessity of striking terror:—the obstinacy of the resistance. It is easily seen that those are insufficient arguments. There is no danger from captives or persons willing to surrender; and therefore, to justify putting them to death, there should be antecedent crime, of a capital amount. And when this can be urged, surrender on condition of life is sometimes not accepted; or they are put to death after surrender: for instance, those who, though convinced of the injustice of the war, remained in arms; or attacked the reputation of their enemies with monstrous calumnies; or violated faith; or other laws, such as the rights of legation; or were deserters.

2 But as to Retaliation, nature does not allow it, except against the offender himself. Nor is it sufficient, that the enemy is, by a sort of fiction, conceived as forming one body; as appears from what we have said above of the punishment of accessories. Aristides speaks of blaming what others do, and yet imitating it. Plutarch accuses the Syracusans on this ground, as having put to death the wives and children of Hicetas, because he had killed the wife, sister, and son of Dion.

377 3 The advantage which is expected by striking terror, cannot give a right to kill men: but if we have a right, it may be a reason for not remitting it.

4 An obstinate adherence to one’s own party, if their cause be not indecently bad, does not deserve punishment: [so in Procopius:] or at least, not a punishment extending to death; for no impartial judge would so decide. When Alexander ordered the men to be put to death, in a town which had resisted obstinately, the Indians thought him a ruffian; and he, in fear of such a reputation, afterwards used his victory more temperately. To the Milesians he was more generous, sparing them for their fidelity to their friends. When Phyto the governor of Rhegium was led to death with torture by Dionysius, for defending his city obstinately, he exclaimed that the gods would revenge his case; his unjust punishment, as Diodorus calls it. Cæsar, in Lucan, wishes well to him who can think that his citizens have done well, though they carried arms against him; which I admire, including, in citizens, the citizens, not of one nation, but of all.

5 Still less is such killing justified by grief for calamity suffered; as when we read that Achilles, Æneas, Alexander, marked the funerals of their friends with the blood of captives, or persons who had surrendered. Homer calls such a purpose κακὰ ἔργα, evil deeds.

XVII. Even when the offenses are such that they may seem to deserve death, it is the office of mercy to remit the extreme of right, on account of the number of offenders. We find an example of this clemency in God himself, who allowed that the Canaanites and their neighbours should have the offer of peace, on condition of tribute. So Seneca, Pardon is necessary, when the whole army has deserted. What takes away the wise man’s anger? the offenders’ number. So Lucan. Cicero speaks of lot in such a case. So Sallust to Cæsar.

XVIII. 1 What is to be the rule of hostages, we have already suggested. Formerly, when it was believed that every one had a right over his own life, and that he had transferred this to the state, it is not so surprising, if we find hostages, without any private crime, put to death, for the fault of their city; either as by their own consent, or by the public consent, in which their own was included. But when a better wisdom has taught us that our life is not put in our power by God, it follows that no one can by mere consent give a right over his own life, or that of his fellow-citizen. And so Narses thought it atrocious to punish innocent hostages: and Scipio said he would not punish the hostages, but the offenders: not the unarmed, but the armed.

2 What is said by recent writers, that such conventions are valid if authorized by custom, I allow, if they mean that they obtain impunity, which often passes for right; but if they mean that they are free from sin, who take away life on a mere convention, I am afraid they are both wrong themselves, and mislead others. Ιf however, a person who comes as a hostage, is or has been a grave criminal, or griev378ously violates his faith given, it may be that the punishment may be right.

3 But Clelia, who was sent a hostage, not by her own consent but by command of the city, and who escaped by swimming the Tiber, was praised by the Etruscan king, as Livy says.

XIX. We mast add, that all combats by challenge, which are of no use in obtaining rights, or in ending the war, but are merely for the sake of showing valour or skill, are at variance with Christian duty and with humanity. Rulers ought decisively to forbid such, since they must render an account to him, in whose stead they bear the sword, of blood shed uselessly. So Sallust praises leaders who conquer bloodlessly. So the Catti, a people of known valour, are praised by Tacitus, because, with them, champions stepping out of the ranks, and chance fights, are rare.