THE RIGHT OF KILLING ENEMIES, IN JUST WAR, TO BE TEMPERED WITH
MODERATION AND HUMANITY.
In what cases strict justice allows the destruction of an
enemy--Distinction between misfortune and guilt--Between principals
and accessories in war--Distinction between unwarrantable and
excusable grounds of promoting war--Sometimes right and laudable to
forbear punishing an inveterate enemy--Every possible precaution
requisite to spare the innocent--Especially children, women, and
the aged, except they have committed atrocious acts--Clergymen, men
of letters, husbandmen, merchants, prisoners--Conditional surrender
not to be rejected--Unconditional surrender--Exceptions to the
above rules, some of them considered, and refuted--Delinquents when
numerous to be spared--Hostages to be spared--Unnecessary effusion
of blood to be avoided.
I. and II. Cicero, in the first book of his offices, has finely
observed, that "some duties are to be observed even towards those, from
whom you have received an injury. For even vengeance and punishment
have their due bounds." And at the same time he extols those ancient
periods in the Roman government, when the events of war were mild, and
marked with no unnecessary cruelty.
The explanations given in the first chapter of this book will point
out the cases, where the destruction of an enemy is one of the rights
of lawful war, according to the principles of strict and internal
justice, and where it is not so. For the death of an enemy may proceed
either from an accidental calamity, or from the fixed purpose of his
destruction.
No one can be justly killed by design, except by way of legal
punishment, or to defend our lives, and preserve our property, when it
cannot be effected without his destruction. For although in sacrificing
the life of man to the preservation of perishable possessions, there
may be nothing repugnant to strict justice, it is by no means consonant
to the law of charity.
But to justify a punishment of that kind, the person put to death must
have committed a crime, and such a crime too, as every equitable judge
would deem worthy of death. Points, which it is unnecessary to discuss
any further, as they have been so fully explained in the chapter on
punishments.
III. In speaking of the calamities of war, as a punishment, it is
proper to make a distinction between misfortune and injury. For a
people may sometimes be engaged in war against their will, where they
cannot be justly charged with entertaining hostile intentions.
Upon this subject, Velleius Paterculus observes that "to blame the
Athenians for revolting, at the time they were besieged by Sylla,
betrays a total ignorance of history. For the Athenians always
continued so steady in their attachment to the Romans, that their
fidelity became a proverbial expression. Yet their situation at that
time excused their conduct, overpowered by the arms of Mithridates,
they were obliged to submit to a foe within, while they had to sustain
a siege from their friends without."
IV. and V. Between complete injuries and pure misfortunes there may be
sometimes a middle kind of actions, partaking of the nature of both,
which can neither be said to be done with known and wilful intention,
nor yet excused under colour of ignorance and want of inclination. Acts
of pure misfortune neither merit punishment, nor oblige the party to
make reparation for the loss occasioned. Hence many parts of history
supply us with distinctions that are made between those who are the
authors of a war, and principals in it, and those who are obliged to
follow others, as accessories in the same.
VI. But respecting the authors of war, a distinction is to be made
also, as to the motives and causes of war: some of which though not
actually just, wear an appearance of justice, that may impose upon
the well meaning. The writer to Herennius lays it down as the most
equitable vindication of injury, where the party committing it, has
neither been actuated by revenge, nor cruelty; but by the dictates of
duty and an upright zeal.
Cicero, in the first book of his offices, advises the sparing of those,
who have committed no acts of atrocity and cruelty in war, and that
wars, undertaken to maintain national honour, should be conducted upon
principles of moderation. And, in one of his letters, adverting to the
war between Pompey and Caesar, he describes the struggle between those
two illustrious men, as involved in so much obscurity of motives and
causes, that many were perplexed in deciding which side to embrace. In
his speech too for Marcellus, he remarks that such uncertainty might be
attended with error, but could never be charged with guilt.
VII. Such forbearance in war is not only a tribute to justice, it
is a tribute to humanity, it is a tribute to moderation, it is a
tribute to greatness of soul. It was in this moderation, says Sallust,
the foundation of Roman greatness was laid. Tacitus describes his
countrymen as a people no less remarkable for their courage in the
field, than for their humanity to the vanquished and suppliant.
On this subject, there is a brilliant passage in the fourth book
to Herennius, where it is said, "It was an admirable resolution of
our ancestors, never to deprive a captive prince of his life. For
it would be truly a violation of common justice to abuse, by wanton
cruelty and rigour, the power over those, whom fortune has put into
our hands, by reducing them from the high condition, in which she had
placed them before; their former enmity is forgotten. Because it is
the characteristic of bravery to esteem opponents as enemies, while
contending for victory, and to treat them as men, when conquered,
in order to soften the calamities of war, and improve the terms and
relations of peace. But it may be asked, if the enemy now treated with
this indulgence would have shewn the same lenity himself. To which a
reply may be made, that he is not an object of imitation in what he
WOULD have done, so much as in what he OUGHT to have done."
VIII. Though there may be circumstances, in which absolute justice will
not condemn the sacrifice of lives in war, yet humanity will require
that the greatest precaution should be used against involving the
innocent in danger, except in cases of extreme urgency and utility.
IX. After establishing these general principles, it will not be
difficult to decide upon particular cases. Seneca says, that "in the
calamities of war children are exempted and spared, on the score
of their age, and women from respect to their sex." In the wars of
the Hebrews, even after the offers of peace have been rejected, God
commands the women and children to be spared.
Thus when the Ninevites were threatened with utter destruction, on
account of their grievous crimes, a mitigation of the sentence was
allowed, in compassion to the many thousands, who were of an age
incapable of making a distinction between right and wrong.
If God, from whose supreme gift the life of man proceeds, and on whose
supreme disposal it depends, prescribes to himself a rule like this,
it is surely incumbent upon men, who have no commission, but for the
welfare and preservation of the lives of men, to act by the same rule.
Thus age and sex are equally spared, except where the latter have
departed from this privilege by taking arms, or performing the part of
men.
X. The same rule may be laid down too with respect to males, whose
modes of life are entirely remote from the use of arms. And in the
first class of this description may be placed the ministers of
religion, who, among all nations, from times of the most remote
antiquity have been exempted from bearing arms.--Thus, as may be seen
in sacred history, the Philistines, being enemies of the Jews, forbore
doing harm to the company of prophets, that was at Gaba: and David fled
with Samuel to another place, which the presence of a prophetic company
protected from all molestation and injury.
Plutarch relates of the Cretans, that when all order among them was
entirely broken by their civil broils, they abstained from offering
violence to any member of the priesthood, or to those employed in the
sacred rites belonging to the dead. From hence the Greeks came to
denote a GENERAL MASSACRE by the proverbial expression of NO ONE BEING
LEFT TO CARRY FIRE TO THE ALTAR.
Equally privileged with the holy priesthood are those, who devote
their lives to the pursuit of letters, and other studies beneficial to
mankind.
XI. Diodorus bestows an encomium upon the Indians, who, in all their
wars with each other, forbore destroying or even hurting those employed
in husbandry, as being the common benefactors of all. Plutarch relates
the same of the ancient Corinthians and Megarensians, and Cyrus sent
a message to the king of Assyria to inform him that he was willing to
avoid molesting all who were employed in tilling the ground.
XII. To the above catalogue of those exempted from sharing in the
calamities of war, may be added merchants, not only those residing for
a time in the enemy's country, but even his natural-born, and regular
subjects: artisans too, and all others are included; whose subsistence
depends upon cultivating the arts of peace.
XIII. and XIV. More civilized manners having abolished the barbarous
practice of putting prisoners to death, for the same reason, the
surrender of those, who stipulate for the preservation of their lives
either in battle, or in a siege, is not to be rejected.
The Romans, when investing towns, always accepted offers of
capitulation, if made before the battering ram had touched the walls.
Caesar gave notice to the Atuatici, that he would save their city,
if they surrendered, before the battering ram was brought up. And in
modern times it is the usual practice, before shells are thrown, or
mines sprung, to summon places to surrender, which are thought unable
to hold out--and where places are stronger, such summons is generally
sent, before the storming is made.
XV. and XVI. Against these principles of natural law and equity an
objection is sometimes derived from the necessity of retaliation,
or striking terror, in cases of obstinate resistance. But such an
objection is by no means just. For after a place has surrendered, and
there is no danger to be apprehended from the prisoners, there is
nothing to justify the further effusion of blood.--Such rigour was
sometimes practised, where there were any enormous acts of injustice,
or any violation of faith; it was practised also upon deserters, if
taken.
Sometimes, where very important advantages may attend striking a
terror, by preventing the same crimes in future from being committed,
it may be proper to exercise the right of rigour in its full extent.
But an obstinate resistance, which can be considered as nothing but the
faithful discharge of a trust, can never come within the description of
such delinquencies, as justify extreme rigour.
XVII. Where delinquencies indeed are such as deserve death, but the
number of offenders is very great, it is usual, from motives of mercy,
to depart in some degree from the right of enforcing the whole power
of the law: the authority for so doing is founded on the example of
God himself, who commanded such offers of peace to be made to the
Canaanites, and their neighbours, the most wicked of any people upon
the face of the earth, as might spare their lives upon the condition of
their becoming tributaries.
XVIII. From the opinions advanced and maintained above, it will not
be difficult to gather the principles of the law of nature respecting
hostages.
At the time, when it was a general opinion that every one had the same
right over his life, as over his property, and that right, either by
express or implied consent was transferred from individuals to the
state, it is not surprising that we should read of hostages, though
harmless and innocent as individuals, being punished for the offences
of the state: and, in this case, the consent of the state to such a
regulation implies that of individuals, who have originally resigned
their own will to that of the public; in whom, after such resignation,
it indubitably vested.
But when the day-spring rose upon the world, men, obtaining clearer
views of the extent of their power, found that God, in giving man
dominion over the whole earth, reserved to himself the supreme disposal
of his life, so that man cannot resign to any one the right over his
own life or that of another.
XIX. By way of conclusion to this subject it may be observed, that all
actions no way conducive to obtain a contested right, or to bring the
war to a termination, but calculated merely to display the strength
of either side are totally repugnant to the duties of a Christian and
to the principles of humanity. So that it behoves Christian princes
to prohibit all unnecessary effusion of blood, as they must render an
account of their sovereign commission to him, by whose authority, and
in whose stead, they bear the sword.