[CHAPTER XI.][66]
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.