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• The Rights of War and Peace Book Iii
• Chapter I: Certain General Rules, Shewing What, By the Law of Nature, Is Allowable In War; Where Also the Author Treats of Deceit and Lying.
• Chapter II: How Subjects Goods, By the Law of Nations, Are Obliged For Their Prince’s Debts: and of Reprisals.
• Chapter III: Of a Just Or Solemn War, According to the Right of Nations, and of Its Denunciation.
• Chapter IV: The Right of Killing Enemies In a Solemn War; and of Other Hostilities Committed Against the Person of the Enemy.
• Chapter V: Of Spoil and Rapine In War.
• Chapter VI: Of the Right to the Things Taken In War.
• Chapter VII: Of the Right Over Prisoners.
• Chapter VIII: Of Empire Over the Conquered.
• Chapter IX: Of the Right of Postliminy.
• Chapter X: Advice Concerning Things Done In an Unjust War.
• Chapter XI: Moderation Concerning the Right of Killing Men In a Just War.
• Chapter XII: Concerning Moderation In Regard to the Spoiling the Country of Our Enemies, and Such Other Things.
• Chapter XIII: Moderation About Things Taken In War.
• Chapter XIV: Of Moderation Concerning Captives.
• Chapter XV: Moderation In Obtaining Empire.
• Chapter XVI: Moderation Concerning Those Things Which, By the Law of Nations, Have Not the Benefit of Postliminy.
• Chapter XVII: Of Neuters In War.
• Chapter XVIII: Concerning Things Privately Done In a Publick War.
• Chapter XIX: Concerning Faith Between Enemies.
• Chapter XX: Concerning the Publick Faith Whereby War Is Finished; of Treaties of Peace, Lots, Set Combats, Arbitrations, Surrenders, Hostages, and Pledges.
• Chapter XXI: Of Faith During War, of Truces, of Safe-conduct, and the Redemption of Prisoners.
• Chapter XXII: Concerning the Faith of Inferior Powers In War.
• Chapter XXIII: Of Faith Given By Private Men In War.
• Chapter XXIV: Of Faith Tacitly Given.
• Chapter XXV: The Conclusion, With Admonitions to Preserve Faith and Seek Peace.
• Passages of Scripture, Illustrated, Examined, Or Corrected In This Treatise . †
• Appendix Prolegomena to the First Edition of De Jure Belli Ac Pacis
• Bibliography of Postclassical Works Referred to By Grotius
• Bibliography of Works Referred to In Jean Barbeyrac’s Notes

CHAPTER XI

Moderation concerning the Right of killing Men in a just War.

I.That some Acts in a just War, are unjust in themselves.I. 1. But that is not to be allowed in a just War, as is commonly said,

• ——1Arma tenenti
• Omnia dat, qui justa negat. ——
• He gives up all, who what is just denies.

But Cicero has it better, There are certain Duties to be observed even towards those that have wronged us,2for there is a Moderation required in Revenge and Punish-<631>ment. The same Author commends the antient Times of the3Romans, when the Ends of their Wars were either mild, or rigorous, merely through Necessity. Seneca4 calls those cruel, who having a just Cause to punish, have no Moderation in it. Aristides saith,5It is possible that they may be unjust, who only revenge a Wrong done to themselves, if they go beyond Moderation; for he that in this Act shall exceed just Bounds, renders himself culpable in his Turn. Thus in Ovid’s6 Opinion, a certain King,

• • —— Caede nocentum
  • Se nimis ulciscens extitit ipse nocens.
• • Following the Guilty with too quick Revenge,
  • Deriv’d a Guilt upon himself. ——

The Plateans in an Oration of Isocrates demand,7If it be just, thus for such slight Trespasses to exact rigorous Punishments. And the same Aristides in his second Oration for Peace, saith, Consider not only the Reasons for punishing, but also the Persons to be punished, who we ourselves are, and what is the just Measure of Punishment. Minos is commended in Propertius:

• Victor erat quamvis, aequus in hoste fuit.
• Tho’ Conqueror,8to Foes was always just.

And in Ovid,9

• —— leges captis justissimus auctor
• Hostibus imposuit ——
• Most just to Captives he dispenses Laws.

II.Who may be killed with a safe Conscience.II. 1. But when it is just to kill (for there we must begin) in a just War according to internal Justice, and when not, may be plainly understood from what I have said in the first Chapter of this Book. For a Man may be killed either designedly, or<632> without a direct Design. No Man can be justly killed with Design, unless for a capital Crime, or because we cannot really secure our Lives and Estates without doing it. Tho’ that very Thing, to kill a Man on account of our Estates, which are frail and perishable Goods, is not repugnant to Justice strictly taken, yet is it far wide from1 the Law of Charity. But that the Punishment may be just, it is absolutely required, that he who is killed should have rendered himself culpable, and that in so heinous a Manner, that before an upright Judge he should be condemned to die. Of which we shall here say the less, because we have fully explained already, in the Chapter concerning Punishments, whatever is necessary to be known on this Head.

III.No Man can be justly killed for his Misfortunes, as they that are forced to follow a Party.III. 1. Above,a when we treated of Suppliants, (for there are such both in Peace and War) we distinguished between the unfortunate and culpable. Gylippus in that Place of Diodorus Siculus, which I there quoted, asks this Question,1 in what Class the Athenians ought to be reckoned, either of the unfortunate or the unjust. And he declares, they cannot be ranked among the unfortunate, because voluntarily without any manner of Provocation, they had made War on the Syracusans: When ceheinfers, since they had freely begun a War, they must expect to undergo the Miseries of that War. They are to be esteemed unfortunate who happen to be in the Party of one of the Enemies, without any hostile Disposition towards the other Party, as the Athenians in the Time of Mithridates, of whom thus speaks Velleius Paterculus,2If any one should charge the Athenians with Rebellion, at the Time (when Athens was besieged by Sylla ) he is very ignorant both of Truth and antient History. For the Fidelity of the Athenians was so firm to the Romans, that always, and upon all Occasions, whatsoever was done with a singular Honesty, the Romans used proverbially to say, it was done Athenian like. But then being oppressed by the Forces of Mithridates, they were reduced to a most miserable State, whilst they were within enslaved by their Enemies, and besieged by their Friends, whilst their Hearts were without the Walls, but their Bodies in compliance with Necessity, were within. Which last Part seems to be taken out of Livy,3 in whom Indibilis the Spaniard declares, that his Body only served the Carthaginians, but his Mind the Romans.

2. For, saith Cicero,4all those whose Lives are in the Power of others, often consider what they can or may do, at whose Mercy they lie, rather than what they ought to do. So says the same Cicero5 for Ligarius, It is the third Time that he continued in Africk after the coming of Varus, which if it be a Crime, it is of Necessity not of Will. And Julian took this course in the Case of the Aquileians, as Ammianus6 testifies, who when he had ordered the Punishment of a few, adds, he let the others Escape, as whom Necessity, not Choice, had forced into Arms. Thus says an antientb Commentator on that Place of Thucydides, of the Corcyrean Captives that were sold. It was an Act of Clemency, worthy of the Greeks, for it is inhuman to kill<633> Prisoners after the Battle is over, especially Slaves, who do not fight of their own Choice. The Plataeans thus argue in the aforesaid Oration of Isocrates,7We did not serve them willingly (the Lacedemonians ) but were forced to it. And so for the other Grecians, They were forced with their Bodies to join with them, but their Hearts were with you. Herodotus8 also says of the Phocians, They followed the Medes not voluntarily, but forced by Necessity. Alexander spared the Zeldi, as Amianus relates,9Because they were forced into the Service of the Barbarians. Diodorus10 makes Nicolaus the Syracusan thus plead for the Captives, The Allies were forced to make War; wherefore as it is but just that they should be punished, who designedly offer the Wrong; so it is equally just to pardon them, who offend against their Will. So in Livy,11 the Syracusans to excuse themselves to the Romans, said, they broke the Peace being oppressed by Fear and Fraud. Thus for a like Reason Antigonus declared,12That he made War with Cleomenes, and not with the Spartans.

IV.Nor for a middle Fault between Misfortune and Fraud, whose Nature is explained.IV. 1. But it is to be observed, that between an absolute Injury, and a mere Misfortune, there often intervenes something of a middle Nature, as it were composed of both, so that the Action cannot be said to be either entirely of Knowledge and voluntarily, nor purely of Ignorance and against the Will.

2. Aristotle calls this Act ἁμάρτημα, in Latin rendered culpa, a Fault. For thus he says in the 5th Book of his Morals, and the 10th Chapter. Of voluntary Actions, some we do deliberately, others not. They are said to be done deliberately, which are acted by a certain previous Consultation of the Mind; what are otherwise, we say are done unadvisedly. Since then in human Society an Injury may be done three Ways, that which proceeds from Ignorance is termed a simple Fault. As, if a Man should do a Mischief to one whom he did not design to hurt, or what he did not really intend, or not in the manner he intended it, or not with such a View; as if any one did not think to strike with this Instrument, not this Man, or not upon this account; but it happened otherwise than he proposed to himself: He designed to pinch, not to wound, either not this Person, or not in this manner. Therefore if a Damage happen thus against all Expectation, it is a Mischance; but if it might in some manner have been expected or foreseen, tho’ not with an evil intent, it is a simple Fault: For there is some Fault on the Part of the Agent, when the Principle of Action is within him: But when the Principle of Action is without him, he is only unfortunate; but when a Man does knowingly what he does, though not deliberately, it must be acknowledged that an Injury is done: As whatsoever Men may do through Anger, or other like Disturbances of the Mind, either natural, or inevitable; for they who in Passion do Mischief, and yet through their Fault, do certainly commit an Injury, neither yet are they reckoned unjust or malicious. But if a Man should do it deliberately, he is rightly accounted wicked and unjust.

3. Therefore whatsoever is done through Anger, is judged with Reason not to be done premeditately; for he does not begin, who in a Passion does an Injury, but he that provoked that Passion. Hence it is, that when such Cases are tried at Law, the Question frequently turns, not upon the Fact, but upon the Right; for Anger arises from hence, that a Man thinks himself wronged. Therefore the Query is not here, as in Contracts, whether what is complained of be done, or not; for there, unless there be Forgetfulness, one of the Parties must of Necessity be wicked in not performing the Contract, but in this they demand, whether what was done were justly done. Now he that first laid an Ambush, did it not through Ignorance, wherefore no wonder if the one Person<634> thinks himself wronged, and the other not. But even those who commit Injuries without Deliberation, and in Passion, ought to be accounted unjust, when in rendering Evil for Evil, they pass the Bounds of Proportion or Equality; so he is truly just who acts justly with Deliberation, for sometimes a Man may do a just Thing willingly, but not deliberately.

4. But of those Wrongs that are not done voluntarily, some may be pardonable, others not;1those are pardonable that are done not only by Men ignorant, but through pure Ignorance also. But if any be done by ignorant Persons, but not through pure Ignorance, yet through some Passion that exceeds the common Bounds of human Nature, they are no wise pardonable.

5. Michael Ephesius interpreting this Passage, as an Instance of what happens contrary to all Expectation, gives us the Case of a Son, who by the opening of a Door, has hurt his own Father: Or of a Man who in a solitary Place trying to shoot, has accidentally wounded a Person; and of that which might have been foreseen, but without any evil Intent, he alledges the Case of a Man shooting at random in a Highway. The same Commentator gives us an Example of Necessity in him, who is obliged by Hunger, or Thirst, to do any Thing. Of natural Passions, in Love, Grief, Fear: He says that one acts through Ignorance, when the Fact is unknown; as if a Man did not know a Woman was married; a Crime is done by a Person ignorant, not through pure Ignorance, when the Right is not known. But this Ignorance of Right may sometimes be excused, and sometimes not; all which well agree with the Opinion of the antient Civilians. There is a Place in Aristotle not unlike this, in his Book of the Art of Oratory: Equity distinguishes between simple Faults and Injuries, and between simple Faults and Mischances; Mischances are those which could neither be foreseen, nor done with an ill Design. Simple Faults, those that might have been foreseen, but not done with an evil Intent; but Injuries, which have been done both designedly; and with a malicious Intent. The Antients have remarked that Homer had a Notion of those different Sorts of Action: And on that Head alledge what the Poet2 relates in the last of his Iliad concerning Achilles.

• Ὄυτε γὰρ ἐστ’ ἄϕρων, οὔτ’ ἄσκοπος, οὔτ’ ἀλιτήμων.
• Not ignorant, nor rash, nor ill disposed.

6. The like Distinction is also in Marcian,3We offend either purposely, through Passion, or accidentally. Purposely, as a Gang of Thieves do. Through Passion, as when a Man in Drink falls to fighting with Fists or Sword. Accidentally, as when in Hunting an Arrow levelled at a Deer, kills a Man. Those two which are done purposely and through Passion, Cicero thus distinguisheth, In all Acts of Injustice it is highly to be considered,4whether they be done by any Perturbation of Mind, which is generally short, and quickly over; or with premeditated Design. For those are much slighter, which are done by some sudden gust of Passion, than they done deliberately and designedly.5Philo in his Explanation of some particular Laws, says, It is but half a Crime, which is not done deliberately.

7. Of which Kind are those chiefly, which Necessity,6 if it does not justify, yet<635> excuses; for as Demosthenes7 argues against Aristocrates, Necessity takes from us the Liberty of examining what we ought to do, or not to do; wherefore such Cases are not to be too strictly searched into by equitable Judges. Which Point the same Author (Demosthenes) handles8 more largely, in his Oration of false Witness against Stephanus. As also Thucydides, in his fourth Book,9It is highly probable, that GOD himself is willing to forgive those, who are compelled by War, or otherwise necessitated to do any Thing; for the sacred Altars have been ever allowed sure Places of Refuge for them to fly unto, as have unwillingly offended; and the Name of Crime is given to unlawful Actions, which are committed on purpose, and not to those which extreme Necessity gives Courage to commit. The Cerites in Livy,10 thus address the Romans, That they would construe that a deliberate Act, which was more justly to be called Force or Necessity. And Justin11 says thus, The Act of the Phocians, tho’ all condemned it for its heinous Sacrilege, yet it brought a greater Odium upon the Thebans, who perfectly forced them to it, than upon themselves. And this is the Opinion of Isocrates,12Of him who steals purely to keep himself from starving, he hath Necessity, a good Plea for Pardon. Also Aristides13 says, The Hardness of the Times is some Excuse for those that abandon their Allies. Thus says14Philostratus of the Messenians, that they did not receive those that were banished from Athens, They could not safely do it, for Fear of Alexander, whom all Greece severely dreaded. And thus we find in Aristotle,15Half wicked, but not unjust, nor a Lier-in-wait. Themistius, in his Praises of the Emperor Valens, thus applies these Distinctions to our Purpose,16You have well distinguished between a real Injury, a Fault, and a Misfortune;17tho’ you are not acquainted either with Plato, or Aristotle, yet you put in practice their Precepts; for you have not judged them worthy of the same Punishment, who were the Authors of the War, and those who afterwards were forcibly<636> engaged in it, and those who submitted to him who seemed Master of the Empire. But those you have condemned, those you have corrected, and the last received unto Mercy.

8. The same Author, in another Place, advises a young Emperor. Consider what Difference there is between a Misfortune, a Fault, and a direct Injury; and how it becomes a Prince to forgive the first, chastise the second, and severely punish the third. Thus, according to Josephus,18 did Titus the Emperor punish only the principal in a Crime, μέχρις ἔργου, really; but the Multitude μέχρι λόγου, only by Reprimands. Bare Misfortunes neither deserve Punishment, nor engage us to make any Restitution; but unjust Actions are obnoxious to both. But the Fault of a middle Nature, as it is liable to Restitution, so often it does not merit Punishment, especially capital. To this we may refer that of Valerius Flaccus.

• • At quibus invito maduerunt sanguine dextrae,
  • Si sors saeva premat miseros, sed proxima culpae
  • Hos variis mens ipsa modis agit, & sua carpunt
  • Facta viros resides ——
• • But those who by Chance imbrue their Hands in Blood,
  • Press’d by Misfortune, tho’ not the greatest Crime,
  • Yet conscious of a Guilt, feel Loads of Anguish,
  • Remorse distracts ’em, and the hideous Image
  • Still stares them in the Face.

V.The principal Authors of a War to be distinguished from those drawn into it.V. We meet with frequent Examples in History, of differenta Punishments inflicted on the principal Authors of a War, and those who have been drawn into it (as Themistius observes); Herodotusb relates, that the Grecians took an exemplary Punishment on those who had been the chief Authors of the Thebans Revolt to the Medes. Thus (as Livy tells us)1 the principal Men of Ardea were beheaded. In the same Author,2Valerius Levinus, having taken Agrigentum, he whipt their chief Leaders with Rods, and then beheaded them, the Rest, and the Prey, he sold. Also, in another Place of the same Livy,3When Atella and Calusia were surrendered, their Leaders were put to Death. Again, in another Place,4 (he addresses the Roman Senate) Since the chief Authors of this Rebellion are deservedly punished by the immortal Gods, and by you, illustrious Fathers, what do you intend to do with the innocent People? At last they were pardoned, and their Freedom restored;5to the End (as he says) where the Fault begun there the Punishment should stop. Eteocles the Argive is highly commended in Euripides,6 because

• When he was Judge, the Guilty always bore
• The Weight of their own Faults; the People never
• Groan’d with the Burden of their Rulers Crimes.

And the Athenians (as Thucydides relates) repented of their Decree against the Mitylenians,7That they should destroy the whole City, rather than the principal Au-<637>thors of the Revolt. Demetrius is also reported by Diodorus, when he took Thebes, to have put only ten of the chief Leaders to the Sword.

VI.In the very Authors we must distinguish the Causes, whether probable, or improbable.VI. 1. But also in the very Authors of the War, we must distinguish the Causes; for there are some, not indeed just, but yet such as may impose upon Men not really wicked. The Writer to Herennius lays down this as a most just Plea for Pardon,1If any one who hath offended, did it not out of Hatred or Cruelty, but out of Duty and good Design. Seneca’s Wiseman,2Will let his Enemies go off safe, even sometimes commended, if they were engaged in the War upon honest Grounds, out of Loyalty, according to the Obligations of an Alliance, for their Liberty. The Caerites, in Livy,3 beg Pardon for their Fault4 in assisting their Kinsmen. The Phocians,5 the Chalcidians, and others, who had aided Antiochus, according to their Treaty, were pardoned by the Romans. Aristides, in his second Leuctrica, speaks of the Thebans, who under the Conduct of the Lacedemonians marched against the Athenians,6They were indeed engaged in an unjust Action, but with a fair Plea, they did it out of Fidelity to the Lacedemonians.

2. Cicero,7 in his first Book of Offices, says, they are to be pardoned who have not been cruel nor inhuman in the War. Also, that Wars undertaken for the Glory of Empire, are to be managed with less Severity. Thus King Ptolemy signifies to8Demetrius, that They ought not to make War for every Kind of Reason, but only for Glory and Empire. And so Severus,9 in Herodian, When we first took Arms against Niger, we had not any specious Pretences of Quarrel against him; but the Empire being the Prize disputed for, both of us with equal Ambition contended for it.

3. That often happens, which Cicero10 observed in the War between Caesar and Pompey. There was a great Uncertainty, the most famous Commanders were not agreed, many could not tell whose Cause was best. And what he also says in another Place,11Tho’ we be guilty of a Failing, through human Frailty, yet we are certainly free from a Crime. As in Thucydides, those Acts are positively declared par-<638>donable which are done, Not out of Malice, but through Error. The same Cicero12 says of Dejotarus, He did not engage out of any Hatred to you, but slipt through common Frailty. And Salust,13 in his History, And the common People, more from Example than any Understanding of the Cause, flocked in one after another, and followed the foregoing Leader as the wiser. What Brutus writ of Civil Wars, may not improperly be applied to all Wars,14We ought to be more severe in preventing them, than ready to discharge our Wrath upon the conquered.

VII.Even to Enemies who have deserved Death, often times the Punishment may rightly be remitted.VII. 1. Even where Justice does not demand it, yet it is often agreeable to Goodness[[,1 to Moderation, and a great Soul to forgive. Salust2 says, that The Romans advanced their Greatness by forgiving. And Tacitus,3We ought to be as merciful to Suppliants, as implacable against Enemies. But Seneca,4 that It belongs only to wild Beasts, and even such as have no Spark of Generosity, to bite and tear those they have thrown down. Elephants and Lions, after they have slung on the Ground, what resisted them, leave it there, and go away. The Situation of Things is often such that one may say, as it is in Virgil,

• • 5 ——— Non hic victoria Teucrûm
  • Vertitur, aut anima una dabit, discrimina tanta.
• • If I survive, shall Troy the less prevail?
  • A single Soul’s too light to turn the Scale.

  • Dryden.

]]

2. There is a remarkable Place to the same Purpose, in the fourth Book to Herennius.6 “Our Ancestors well observed, to put no captive King to Death. And why? It would be unjust to abuse that Power which Fortune hath bestowed on us to the Destruction of them, whom the same Fortune, a little before, had placed in the most eminent Station. But, you will say, he brought an Army against us! I now absolutely forget it. Why so? Because it is the Part of a brave Man to hold those his Enemies who dispute with him the Victory, and to consider them as Men, when vanquished; that so Valour may finish the Calamities of War, and Humanity augment the Advantages of Peace. But, you will say again, suppose he had got the Victory, would he have done the same? Why then should you spare him? Because it is my Practice to despise such Folly, not to imitate it.” If you understand this of the Romans, (which is very uncertain, since the Author often employs Reasons drawn from foreign Examples, or even such as are fictitious) it is absolutely repugnant to that which we meet with in the Panegyrick of Constantine, the Son of Constantius.7 “Tho’ he be the more prudent Man, who by a Pardon gains the Affection of<639> Enemies, yet he is the more valiant, who treads them under Foot when vanquished. You have revived, O Emperor! that antient Boldness of the Roman Empire, which always put the Generals of the Enemy, whom they had taken Prisoners, to Death. For then the captive Kings, after they had attended the triumphant Chariot of the Conqueror, from the Gates to the Forum, as soon as ever he turned his Chariot to the Capitol, were dragged to Prison, and there put to Death.

Except only Perseus, who, by the particular Favour of Paulus Aemilius, (to whom he had yielded himself) escaped this severe Punishment. But the Rest, deprived of Life in a Prison, served as a Warning to other Kings, rather to court the Friendship of the Romans, than provoke their Justice.” But this Author expresses himself too generally. Josephus indeed mentions the like Severity of the Romans, in the History of Simon Barjora, who experienced it; but he speaks of Generals, such as Pontius the Samnite, not of those who had the Title of Kings. The Meaning of his Words may be taken thus.8 “The Conclusion of the Triumph was when they were come to the Capitol, the Temple of Jupiter, for there, by antient Custom, the Conqueror staid, till he had Notice of the Death of the Enemy’s General. It was Simon the Son of Jora, who was led among the Prisoners in triumph: He then having a Halter about his Neck, was hurried to the publick Place, his Keepers also whipping him on: For in that Place it is the Custom of the Romans to put to Death, those that are condemned for capital Crimes. As soon then as it was declared that he was dead, they first offered up Vows, and then Sacrifices.” Cicero9 almost writes the same of Punishments, in his Oration against Verres.

3. We have many Examples of Generals thus executed, and some of Kings, as10 of Aristonicus,11Jugurtha,12Artabasdus. Yet besides Perseus, Syphax,13 <640> Gentius,14Juba15 and, in the Time of the Caesars, Caractacus,16 and others, escaped this Punishment; whence it appears, that the Romans had Respect to the Causes of the War, and the Manner of prosecuting it; whom yet Cicero,17 and other antient Authors, do acknowledge to have been too cruel in their Victories. Therefore M. Aemilius Paulus, in Diodorus Siculus, well advised the Roman Senators, in the Case of Perseus.18Tho’ they fear not the Power of Man, yet they ought to dread the Divine Vengeance, which is ready to fall on them who insolently abuse their Victories. And19Plutarch observes, that in the Grecian Wars, the very Enemies refrained all Violence to the Lacedemonian Kings, in Respect to their Dignity.

4. An Enemy then who hath not Respect purely to what human Laws allow, but what is really his own Duty, and what the Rules of Virtue require, will spare even his Enemy’s Life; and will put no Man to Death, unless to save himself from Death, or something like it, or to punish personal Crimes that deserve Death. Nay, and to some of those that deserve it, either from a Principle of Humanity, or some other good Reason, he will either remit all Punishment, or at least the capital Part. The same forementioned Diodorus Siculus20 excellently observes, “The taking of Cities, successful Battles, and other Prosperities of War, are often more owing to Fortune than Valour. But to shew Mercy to the Vanquished is purely the Effect of Wisdom.” We read in Curtius,21 “Tho’ Alexander had just Reason to be angry against the Authors of the War, yet he forgave them all.”

VIII.We must take all possible Care that the Innocent be not, tho’ against our Intention, kill’d.VIII. As to Persons who are killed accidentally, and not on purpose, we are to remember what we saida above, that if not for Justice, yet for Pity, we must not attempt any Thing which may prove the Destruction of Innocents, unless for some extraordinary Reasons, and for the Safety of many. Polybius is of the same Opinion, who, in his first Book, thus speaks,1 “It is the Part of a good Man not to prosecute a War to the utmost, against those that are wicked, but only so far, till they have made Satisfaction for, and amended their Crimes, and not promiscuously to involve the Innocent in the Punishment of the Guilty, but, for the Sake of those Innocents, even to pardon the Guilty.”

IX.Children to be spared, and Women, unless highly criminal, and also old Men.IX. 1. These general Principles being laid down, it will not be difficult to infer more particular Rules.1Tender Age must excuse the Child, and her Sex the Wo-<641>man, (says Seneca, in his Books against Anger). GOD himself, in the Wars of the Hebrews, even after Peace offered and refused, would have Women and Infants spared, (Deut. xx. 14.) only some few Nations excepted by a special Command, against whom the War was not a human War, but a War of GOD, as it was commonly called. And when he ordered the Midianitish Women to be slain for their own personal Crimes, he yet excepted those that were pure Virgins. (Numb. xxxi. 18.) Nay, when he denounced fearful Judgments on the Ninevites, for their enormous Sins, he was pleased to delay the deserved Vengeance, in Compassion of so many thousands, who could not distinguish between Good and Evil. (Jonah iv. 2.) Like to which is that in Seneca,2Can any one be angry with Children, whose Age as yet understands not the Difference of Things? And in Lucan,3

• Crimine quo parvi caedem potuere mereri?
• How could young Infants ever merit Death?

If then GOD, who, as the Author and Lord of Life, may, without Injustice, take it away when he pleases, and without any other Reason, from Persons of whatsoever Sex or Age, has, nevertheless, commanded, and acted himself towards Women and Children, in the Manner we have now seen; what ought Men (to whom he hath given no other Right over their Fellows, than what is necessary to preserve the Safety and Society of Mankind) to do in this Case?

2. We might add here, first, in Regard to Children, the Judgment of those Nations and Times wherein Justice most prevailed:4We carry Arms (says Camillus, in Livy) not against that tender Age, which is spared, even at the taking of Cities, but against those who are in Arms. He adds, that this is one of the Laws of War, that is, one of the Rules of natural Right, which take Place here. Plutarch, treating on the same Subject, tell us,5Good Men observe even some Laws of War. Where, pray observe, he saith Good Men, that you may distinguish this Right from that allowed by Custom, and which only implies a bare Impunity. So Florus6 says, it cannot in Honesty be otherwise. And Livy has it in another Place,7 <642> Which Age the Enemy, tho’ highly provoked, should spare. And again,8Their savage Cruelty and Rage reached even to harmless Infants.

3. There is no Exception here with Respect to Children, who have not as yet the Use of Reason. But as to Women, the Thing takes Place only in general, that is, unless they have committed some Crime which deserves a particular Punishment, or have usurped the Offices of Men. For that is, as Statius expresses it,

• 9Sexus rudis insciusque Belli,
• A Sex unskill’d, and ignorant of War.

The Prefect in the Tragedy, replies to Nero, calling Octavia his Enemy,

• ——— Femina hic nomen capit?
• 10Can a Woman deserve that Name?

And Alexander, in Curtius,11I use not to make War with Captives and Women. He must be in Arms that I take for an Enemy. So Grypus, in Justin,12None of his Ancestors after Victory did ever, in all their Wars, either foreign or domestick, shew Cruelty to Women, whom their very Sex did fully secure from the Hazards of War, and the Fury of the Conqueror. And another, in Tacitus,13That he never made War against Women, but only those that were actually in Arms against him.

4. Valerius Maximus14 calls the Behaviour of Munatius Flaccus against Women and Children, a barbarous Cruelty, and not fit to be mentioned; Diodorus15 tells us, that the Carthaginians, at Selinus, killed old Men, Women, and Children, without any Manner of Compassion. And in another Place he calls this Act a savage Cruelty. Latinus Pacatus16 stiled Women, A Sex which the Wars spare. And so did Statius of old Men.

• 17 ——— Nullis violabilis armis
• Turba senes ———
• Old Men should be from Violence secur’d.

X.Priests and Scholars to be spared.X. 1. What we have said (of Women and Children) may be generally said of all Men, whose Manner of Life is wholly averse to Arms.1By the Laws of War, only those that are in Arms, and do resist, are to be killed, according to Livy, that is, that Law which is agreeable to Nature. So says Josephus,2 It is just that they should suffer by Arms, who have taken up Arms, but the Innocent should not be<643> touched. When Camillus had taken the City of Veii,3 he ordered, that they should not hurt those that were not in Arms. In the first Rank of these ought to be held, those who are engaged in holy Things. For as it was in all Ages the general Custom of Nations to excuse them from bearing Arms,4 so were they excused also from the Violence of Arms. Thus the Philistins, tho’ professed Enemies of the Jews, spared the5 College of Prophets at Gaba, as you may find, 1 Sam. x. 5. and 10. And so to another Place where was a like College, as it were set apart and privileged from all Violence, did David flee with Samuel, 1 Sam. xix. 18. Plutarch6 informs us, when the Cretans were engaged in Civil Wars, they mutually forbore all manner of Violence7 to the Priests, and those who had the charge of burying the Dead. To this we may apply the Greek Proverb,

• Ὀυδὲ πυρϕόρος ὑπελείϕθη.
• Not a single Priest escaped.

8Strabo observes, when all Greece was up in Arms, the Eleans, as sacred to Jupiter, and those that sojourned among them, enoyed a secure Peace.

2. They also have justly this same Privilege, as the Priests, who have embraced a like Sort of Life, as Monks, and9 Lay-Brothers, that is, Penitents, whom the10Ecclesiastical Canons, according to natural Equity, would have spared equally as Priests. To these we may justly add those who apply themselves to the Study of Sciences and Arts beneficial to Mankind.

XI.And also Husbandmen.XI. Next to these, the Canons1 privilege Husbandmen. Diodorus Siculus2 highly commends the Indians, In their Battles they kill one another (without Mercy)<644> but they do not Harm to the Husbandmen, as being necessary for the publick Good. Plutarch says of the antient Corinthians3 and Megareans, None of them would in any wise hurt the Husbandmen. And Cyrus sends to the Assyrian King,4He was desirous that Husband men should be secure and indemnified. And Suidas5 says of Belisarius, He was so favourably inclined to Husbandmen, and took such a particular care of them, that whilst he was General, there was no manner of Violence done to them.

XII.Merchants and the like.XII. Next to these the Canon1 includes Merchants, which is not to be understood only of those who sojourn for a Time in an Enemy’s Country, but also such as are natural and perpetual Subjects, because the manner of the Life they use is entirely averse from War: And under this Denomination are comprehended all Sorts of Mechanicks and Tradesmen, whose immediate Interest makes them more inclinable to Peace than War.

XIII.And Captives.XIII. 1. That we may come to those that bore Arms, I havea already mentioned that of Pyrrhus in Seneca,1 who said that Honour, that is, a regard to Equity, does not permit us to take away the Life of a Prisoner. We have quotedb a Saying of Alexander to the same Purpose, who allows Captives the same privilege with the Women. We may add that of St. Augustin,2In fight we ought not to kill the Enemy but through Necessity, and against our Will. But as Violence is allowable against one that is in Arms, and in a Case of Resistance, so is Mercy due to the Vanquished, or Captive, especially where there is no danger of the Disturbance of the Peace thereby. Xenophon3 reports of Agesilaus, He ordered his Soldiers not to punish their Prisoners as Malefactors, but to preserve them as Men. And we find in Diodorus Siculus, All the4 Greeks in general engaged stoutly against those that resisted, but shewed Mercy to the Vanquished. The same Author also informs us of the Macedonians5 under Alexander, They were more severe to the Thebans, than the Laws of War allowed.

2. Sallust,6 in his History of Jugurtha, speaking of young Men, who were put to Death, after they had surrendered, says, it was done against the Law of Arms,<645> that is, against the Law of natural Equity, and the known Practice of all civilized Nations. And we read in Lactantius,7They spare the Vanquished, and even in Arms there is room for Mercy. Tacitus commends Primus Antonius and Varus, two Generals of Vespasian, That after the Battle was over, they exercised no Cruelty to any. So Aristides8 says of the Lacedemonians, that They fought vigorously against those who resisted, but shewed Mercy to them when conquered.

The Prophet Elisha asks the King of Samaria this Question about Prisoners of War, Wilt thou kill those whom thou hast taken Captive, with thy Sword, and with thy Bow? 2 Kings vi. 22. In Euripides,9 when one asked in the Heraclidae,

• Does your Law forbid the killing of an Enemy?

The Chorus answers,

• Yes; when taken Prisoner in a Fight.

In the same Author Eurystheus the Captive says,

• My Murderer shall be rank’d among the Guilty.

In Diodorus Siculus,10 the Byzantians and Chalcedonians, because they had slain many of their Prisoners, were branded with this Character, They committed Acts of abominable Cruelty. The same Author in another Place calls11 to spare Captives, The Law of Nations. And they who transgress this Law, he says, without doubt, are guilty of a great Crime. Equity teaches us to be merciful to Prisoners, as we mentioned before out of the philosophical Treatises of Seneca.12 And Historians13 highly commend those, who when the Multitude of their Prisoners has been so great, that the Number would be either chargeable or dangerous, have chose rather to send them all away freely, than to kill them.

XIV.Those to be accepted who surrender upon fair Terms.XIV. 1 For the same Reasons,1 they that either in a Battle, or a Siege, shall demand Quarter, are to be accepted. Wherefore Arrianus2 says, that the Thebans killing of their Prisoners that had yielded, was not done according to the Grecian Custom, οὐκ Ἑλληνικήν σϕαγήν. Likewise Thucydides,3 in his third Book, You received us unto Mercy, who voluntarily, and with Hands listed up, craved a Surrender. And it is the Custom of the Greeks not to put such to Death. And the Syracusan Senators, in Diodorus Siculus,4 tell us, It is the Part of a great Soul to spare a Suppliant. And Sopater5 says, It is the Law to preserve Suppliants in the Wars.

2. In besieged Towns, the Romans observed this Custom before the battering Ram struck the walls. Caesar6 declares to the Aduatici, he would save their City,<646> if they surrendered themselves before the Ram touched the Wall; which is still observed, viz. in weak Towns, before the playing of the Batteries; and in fortified Cities, before the giving of a Storm. But Cicero7 considering not so much what is done, as what ought in Equity to be done, gives his positive Opinion thus: As we ought to take Care of those we conquer, so we should take them into our Protection, who laying down their Arms, surrender to our Generals, tho’ our Rams have battered their Walls. The Hebrew Expositors8 observe, that it was a Custom among their Ancestors, when they laid Siege to a Town, not to encompass it quite round, but to leave one Place free for them to escape, that desired to flee, that they might have less Occasion to shed Blood.

XV.They are also to be spared that surrender without Conditions.XV. The same Equity commands us to spare those, who surrender to the Conqueror without Conditions in a suppliant Manner.1To kill those that have yielded, (says Tacitus) is barbarous. And Salust2 relating how Marius put to Death the young Men of Campsa, who had surrendered, calls it, An Act against the natural Right of War. And the same Author in another Place, He put to the Sword not those that were in Arms, and in Battle, by the Right of War, but the very Suppliants that cried for Mercy. And (as I before mentioned) in Livy,3Killing of armed Men, and those that resist, is allowed by the Right of War. And the same Livy again,4He made War upon those that had submitted, against all Equity and Justice. Nay, the chief Business of a General should be rather to force his Enemies thro’ Fear to a Surrender, than to put them to Death. It was highly commendable in Brutus,5He suffered not his Men to fall on the Enemy immediately, but surrounding them with his Horse, bid his Soldiers spare those who shortly would be their own.

XVI.Provided they were not guilty of some enormous Crime before, and how this is to be understood.XVI. 1. Against these Rules of natural Right and Equity, some Exceptions use to be made, no way just, viz. If it be done by way of Retaliation; if by way of Terror, to frighten others; or if they have been obstinate in their Resistance. But no Man can look upon this enough to justify a Slaughter, who has seriously weighed what has been said before of the just Causes of killing Enemies; For there is no Danger from Prisoners, or from those who have actually surrendered themselves, or desire to do it. That they may therefore be justly put to Death, there ought to be a previous Crime, and that such a one, as an impartial Judge shall think Capital. And so we sometimes see Prisoners, and those that have surrendered themselves, put to the Sword, and their yielding upon Condition to have their Lives spared, not accepted; if they being satisfied of the Injustice of the War,1 have still continued in Arms; if they have2 abused the Conqueror with slanderous Reproaches, if they<647> have3 broke their Faith, or any other Law4 of Nations, as the Privilege of Ambassadors; or if they have5 deserted their Colours.

2. But Nature doth not allow Retaliation, unless against the personal Offenders; neither is it enough to pretend, that the Enemies are but one entire Body engaged against us, as may easily be understood from what hath been alreadya said concerning the Communication of Punishments. We find in Aristides,6It is not perfectly absurd, to imitate as just, what we ourselves condemn as wicked and unjust? Wherefore Plutarch7 blames the Syracusans, for putting to Death the Wives and Children of Hicetas, purely because Hicetas had before killed the Wife, Sister, and Son of Dion.

3. The Benefit which may follow from hence, by striking a Terror for the future, does by no Means give a Right to put to Death. But if we are otherwise authorised to put to Death, this Consideration may engage us not to abate of our Right.

4. Further, an eager Desire to maintain our own Party, if the Cause itself be not absolutely dishonest, cannot really deserve Punishment, as the Neapolitans argue in Procopius; or if there were any Punishment due, it could never amount to that of Death, before an equitable Judge. When Alexander had commanded all the young Men8 in a certain Town to be put to the Sword, because they had made an obstinate Defence, he seemed to the Indians to make War like a Robber; whereupon the King to avoid for the future such Reflections, shewed more Mercy in his Victories. He more honourably spared some Milesians, because they appeared brave and faithful to their own Country, which are the very Words of9Arrian. When Phyto, Governor of Rhegium, was hurried away to Torments and Death, for stoutly defending his City against Dionysius, he cried out, that he was thus barbarously used, because he would not be tray his Country, and that Heaven would quickly revenge his Death. Diodorus Siculus calls it,10unjust Punishment. I much approve that Wish in Lucan,11

• • ——— Vincat, quicunque necesse
  • Non putat in Victos saevum distringere ferrum
  • Quique suos cives, quod signa adversa tulerunt,
  • Non credit fecisse nefas. ———
• • ——— May he be crown’d with Victory,
  • Who thinks it base to kill th’ unhappy Vanquish’d;
  • Tho’ in the Battle, with Minds truly brave,
  • They stood against him. ———

But we must understand by the Word Cives, not the Inhabitants of this or that Country, but all those who are Members of that great State, which comprehends all Mankind. Much less can the Resentment for a Loss received by War, render the shedding of Blood just and lawful; as we read that Achilles, Aeneas and Alexander, celebrated the Obsequies of their deceased Friends with the Blood of their Prisoners, or those that had yielded themselves; therefore Homer justly expresses it,

• 12 Κακὰ δὲ ϕρεσὶ μήδετο ἔργα.
• And in his Mind did evil Things devise.<648>

XVII.Offenders may be pardoned on account of their Multitude.XVII. But where the Crimes are such, as they really deserve Death, yet the Greatness of a Multitude may be some Plea to mitigate the Severity of the Punishment; a Pattern of which forbearing Mercy we have from GOD himself, whoa ordered a Peace to be offered to the Canaanites, and their Neighbours, tho’ notoriously wicked, with the Promise of Life under the Condition of being Tributaries. To this agrees that of1Seneca, Generals rigorously punish a Soldier, who alone commits any Fault; but where a whole Army is unanimously engaged in a Mutiny, a general Pardon is requisite. What abates then the Anger of a wise Man? The Multitude of Offenders. And in Lucan,2

• • Tot simul infesto juvenes occumbere Letho,
  • Saepe fames, pelagique furor, subitaeque ruinae,
  • Aut Caeli, Terraeque lues, aut bellica clades,
  • Nunquàm poena fuit. ———
• • At once so many Youths to hurry into Death,
  • Hunger may do it, or Shipwrecks, or the quick
  • Amazing fall of Buildings, or poyson’d Air,
  • Or blasting Damps, or War; it can’t be Punishment.

Therefore (Cicero3 tells us) to prevent the shedding of too much Blood, they brought in the casting of Lots. And Salust4 thus addresses Caesar, Neither does any one provoke you to severe Punishments, or fearful Judgments, which rather tend to depopulate a State, than to correct the Guilty.

XVIII.Hostages to be spared, unless personally faulty.XVIII. 1. From what has been alreadya mentioned, may easily be understood, what is allowable by the Law of Nature concerning Hostages. As it was formerly believed every one had the same Right over his own Life, as over other Things wherein he had a Propriety; and that this Right, by the Consent, either express, or tacit, of the Individuals, was transferred to the State, it was the less to be admired, if Hostages, personally innocent, were (as we1 read) put to Death for the Crimes of their Country, whether by Vertue of their own particular Consent, or of the Publick, which may be inclusive of their own. But since a truer Wisdom has informed us, that GOD has reserved to himself the Power of our Lives, so that no Man can solely by his own Consent bestow upon another a Power either over his own Life, or that of his Subjects. Therefore (as Agathias writes) that good General Narses abhorred putting innocent Hostages to Death, as a brutish and cruel Act. So also have others done; witness the Example of Scipio, who used to say2 that he would severely punish those who had rebelled, but not the innocent Hostages; neither would he take Revenge of an unarmed Person, but of an Enemy actually in Arms.

2. But what our modern Lawyers, and those not in considerable, maintain, that<649> such Agreements are valid, if authorised by Custom, I allow, if they mean by Right, only an Impunity; which in this Case often comes under that Denomination. But if they suppose, that they who take away a Man’s Life, only by vertue of such an Agreement, are really blameless, I am afraid they are both mistaken themselves, and by their own Authority dangerously mislead others. Indeed, if he that comes as an Hostage, is then, or was before, a notorious Offender, or has afterwards falsified his Faith given in weighty Affairs, his Punishment may then be just.

3. Yet when Clelia, who3 not of her own accord, but by the Order of the State, went an Hostage, escaped by swimming over the Tyber,4The Hetrurian King not only did her no Harm, but even commended her on account of her Bravery: To use Livy’s own Words in the Affair.

XIX.All needless Combats to be avoided.XIX. This also is to be added, that all Combats, which are not of Use for the obtaining of Right, or concluding a War, but merely for vain Ostentation of Strength, that is, as the Greeks call it, Rather a show of Strength, than a warlike Action, [[1 are wholly repugnant to the Duty of a Christian, and Humanity itself. Therefore all Magistrates ought strictly to forbid these Things, for they must render an account for the unnecessary shedding of Blood to him, whose vicegerents they are; Sallust,2 tho’ a Pagan, commends those Generals, who purchase Victory with the least Blood. And Tacitus3 writes of the Catti, a People of known Valour, They seldom made Excursions, or had skirmishes with the Enemy.

[1 ]Lucan. Pharsal. Lib. I. Ver. 349, 350.

[2. ]Sunt autem quaedam officia, &c. De Offic. Lib. I. Cap. XI. See what we have said above, B. II. Chap. XX. § 2. and 22. and the Passages of St. Austin, cited in the preceding Chapter, (§ 2. Num. 3. Note 9.) in regard to the Benevolence Christians ought to retain for each other, even in War. Aristotle speaking of a too rigorous Punishment exercised of old at Thebes and Heraclea, ascribes it to a Spirit of Sedition. Politic. Lib. V. Chap. VI. Thucydides ranks amongst the Disorders of Greece, of which he gives a lively Description, the revenging of Injuries, beyond the Bounds of Justice and the publick Good, Lib. I. (Cap. LXXXII.) Tacitus says of Pompey, that in making too rigorous Laws for the Correction of Vice, the Remedies were worse than the Diseases: Tum Cn. Pompeius, tertium Consul, corrigendis moribus delectus & gravior remediis, quam delicta erant, &c. Annal. Lib. III. (Cap. XXVIII. Num. 1.) The same Historian blames Augustus a little above, for having forgot, in the Punishment of Adultery, the Clemency of the antient Romans, and his own Laws: Nam culpam inter viros ac foeminas, &c. (Ibid. Cap. XXIV. Num. 3.) Juvenal observes that an Husband’s Resentment for his Wife’s Infidelity hurries him sometimes into more terrible Extremities, than all the Laws have ever admitted in favour of Revenge:

• —— Exigit autem
• Interdum ille dolor plus, quam Lex ulla dolori
• Concessit ——

Sat. X. Ver. 314, 315. Quintilian takes it for granted, that only the most atrocious Parricides are punished, when no longer in Being, that is to say, by depriving their Bodies of Sepulture: Ideoque non nisi ab ultimo parricidio exigitur poena trans hominem. Declam. VI. (Cap. X. p. 137. Edit. Burm.) The Emperor Marcus Antoninus wrote to the Senate so to moderate the Proscription and Punishment of the Accomplices in the Revolt of Avidius Cassius, that nothing might be too rigorous nor cruel in them: Et ad Senatum scribam, ne aut proscriptio gravior sit, aut poena crudelior.Vulcat. Gallican. Vit. Avid. Cass. (Cap. XI.) Ausonius intimates, that Punishment and Vengeance may exceed the Crime:

• —— Vindictaque major
• Crimine visa suo ——

[Cupid. Crucifix. Ver. 93, 94.] Ammianus condemns such Conduct in regard to a conquered Enemy: Saevitum est in multos acrius, quam errata flagitaverant, veldelicta, Lib. XXVI. (Cap. X. p. 514. Edit. Vales. Gron.) There is a like Reflection in Agathias, Lib. III. [or rather Lib. IV. Cap. VI.] Grotius.

[3. ]Verumtamen quamdiu imperium, &c. De Offic. Lib. II. Cap. VIII.

[4. ]Illos ergo Crudeles vocabo, &c. De Clement. Lib. II. Cap. IV.

[5. ]Orat. Leuctric. I. (p. 94. A. Vol. II. Edit. Paul. Steph.)

[6. ]De Ponto, Lib. I. Epist. VIII. Ver. 19, 20.

[7. ]Orat. Plataic. p. 298. B. Edit. H. Steph.

[8. ]Lib. III. Eleg. XVII. Ver. 28.

[9. ](Metam. Lib. VIII. Ver. 101, 102.) The same Poet says elsewhere, that Compassion is laudable even towards an Enemy:

• Est etiam miseris pietas, & in hoste probatur.
• Trist.
• Lib. I. Eleg. VIII. (Ver. 35.) Grotius.

[1 ]But see what I have observed above, B. II. Chap. I. § 13. Note 1.

[a ]B. 2. ch. 21. §5.

[1 ]Lib. XIII. Cap. XXIX. p. 345. Edit. H. Steph.

[2. ]Si quis hoc rebellandi, &c. Lib. II. Cap. XXIII.

[3. ]Itaque corpus dumtaxat suum, &c. Lib. XXVII. (Cap. XVII. Num. 13.)

[4. ]Propterea quod omnes, &c. Orat. pro P. Quint. [Cap. II.]

[5. ]Tertium est tempus, &c. Orat. pro Qu. Ligario, Cap. II.

[6. ]Residui omnes abierunt innoxii, &c. Lib. XXI. Cap. XII. p. 307. The Historian adds immediately after, that this Emperor who was of a mild and merciful Disposition acted in this manner from the Motive of Equity: Id enim aequitate pensatâ statuerat placabilis Imperator & Clemens.Thucydides makes Cleon the Athenian say that he pardoned those, whom the victorious Arms of the Enemy had compelled to revolt, Lib. III. (Cap. XXXIX.) This is what Paulus the Lawyer [in treating another Subject] calls: Contemplatio extremae necessitatis. Recept. Sentent. Lib. V. Tit. I. § 1. And certainly nothing is stronger than Necessity, as Synesius said: Ἰσχυρὸν ἀνάγκη πρα̂γμα, καὶ βίαιον. Juvenal, speaking of the Calaguritani a People of Spain, who were reduced in a Siege to eat human Flesh, maintains, that Men and Gods ought to pardon them upon account of the Extremity to which their City was reduced:

• —— Quis nam hominum veniam dare, quisve Deorum,
• Viribus abnueret dira atque immania passis.

Sat. XV. 102, 103. See Cassiodorus upon what Famine is capable of reducing Men to do, Var. Lib. IX. Cap. XIII. The Emperor Pertinax, to excuse Laetus the Praefectus Praetorio, and some others, who had been the Instruments in Commodus, his Predecessor’s Crimes; said, that they had been compelled to obey him; but that since they were at Liberty to speak and act, they had shewn of what Sentiments they had always been: Nec parendi scis necessitatem, &c. (Capitolin. in Pertin. Cap. V.) Cassius Clemens justifies himself to Severus thus: “I knew, says he, neither you nor Piscennius Niger: But finding myself in the midst of his Party, I did what Necessity obliged me to do: I obeyed him, who was in the actual Possession of the Empire, not with design to make War against you, but to expel Julian.” Xiphilin. in Sever. The Emperor Aurelian having entered Antioch, where many People adjoined Zenobia against him, published an Edict, by which he granted a general Amnesty to all those who had escaped, regarding all that was past as the Effect of Necessity, rather than a Disposition to revolt. (Zosim. Lib. I. Cap. LI.) The General Belisarius forgave the Africans, because they had submitted to the Vandals only through Force. Procop. Vandal. Lib. I. (Cap. XX.) Totilas, as the same Historian relates, tells the Neapolitans that he knew they were under the Romans only out of Necessity. Gotthic. Lib. III. (Cap. VII.) Nicetas, or the Person who continues his Work, informs us, that the Emperor Henry, the Brother of Baldwin, caused the Inhabitants of a certain City to be put to the Sword, like an Herd of Beasts, and not a Multitude of Christians; and with so much the greater Cruelty, adds he, because they had submitted to the Blachi thro’ Force, and not Persuasion. Grotius.

[b ]Ad Lib. 1. Cap. 55.

[7. ]P. 299. A. Edit. H. Steph.

[8. ]Lib. IX. Cap. XVII.

[9. ]Arrian. De Exp. Alexandr. Lib. I. Cap. XVIII. Edit. Gronov.

[10. ]Lib. XIII. Cap. XXVII. p. 344. Edit. H. Steph.

[11. ]Nec postea pacem Tyranni, &c. Lib. XXV. Cap. XXIX. Num. 3.

[12. ]Veniamque his, qui superfuerunt, &c. Lib. XXVIII. Cap. IV. Num. 13.

[1 ]Dionysius Halicarnassensis lays down as a Maxim, that whatever is involuntary deserves Pardon. Antiq. Rom. Lib. I. (Cap. LVIII.) Procopius says, that when any Man is injured, either thro’ Ignorance or Forgetfulness, the Sufferer ought to forgive the Offence. Gotthic. Lib. III. (Cap. IX.) Grotius.

[2. ]Ver. 157, 186.

[3. ]Delinquitur autem aut proposito, &c. Digest, Lib. XLVIII. Tit. XIX. De Poenis, Leg. XI. § 2.

[4. ]Sed in omni injustitia &c. De Offic. Lib. I. (Cap. VIII.) Seneca says, that an upright Judge often chooses to acquit a Person, tho’ accused and convicted of having done ill, if his Repentance gives Reason to conceive good Hopes of him; and he finds his Fault did not arise from a confirmed habit of Wickedness. He will even punish (adds he) sometimes great Crimes with less Rigour than small ones, if the former have been committed, not out of Cruelty but Weakness, and the latter are the Effect of concealed and inveterate Malice. He will not punish the same Fault alike, if of two Criminals the one has been guilty through Negligence, and the other by premeditated Design. Dimittit saepe eum, & c. De Ira, Lib. I. Cap. XVI. Grotius.

[5. ]De Legib. Special. Lib. II. p. 791. B. Edit. Paris.

[6. ]See what we have said above, B. II. Chap. XX. § 29. and in this Chapter, § 29. Alcidas, the Lacedaemonian General, having caused many Prisoners to be put to Death, the Embassadors of Samos represented to him, that he called himself the Deliverer of Greece with a very ill Grace, whilst he put Persons to Death, who had not taken Arms against him, nor were his Enemies; because if they had joined the Athenians, they had been reduced to do so by Necessity. Thucydid. Lib. III. (Cap. XXXII.) St. Chrysostom says that Enemies themselves know how to pardon Enemies, tho’ they have suffered ever so great Injuries by them, when the latter have acted involuntarily. De Provident. V. The Misimians, as Agathias relates, believed themselves not entirely unworthy of Pardon, and the Clemency of the Romans, because they had only committed the Offences, that had induced the latter to turn their Arms against them, out of brutal Rage occasioned by having been unjustly treated in several Respects. Lib. IV. Cap. VI.

[7. ]P. 449. B.

[8. ]P. 524. The Passage is quoted above, B. II. Chap. XX. § 29. Num. 2.

[9. ]Lib. IV. Cap. XCVIII. See what is said in Deuteronomy, Chap. XXII. Ver. 26. in regard to a Maid ravished in the Country and the Rabbi Maimonides, Duct. Dubitant. III. 41. Grotius.

[10. ]Ne adpellarent consilium, quae vis ac necessitas adpellenda esset. Lib. VII. Cap. XX. Num. 5.

[11. ]Factum Phocensium, &c. Lib. VIII. Cap. I. Num. 10.

[12. ]Our Author repeats these Words without saying from which Work of the Greek Orators he takes them. I am almost certain that there is no such Sentence in Isocrates ; and I believe one Name is put here for another. Since I wrote this I am convinced of the Truth of my Conjecture, and have found the Thought, and even the Words in a Passage of Porphyry, to which our Author refers in B. II. Chap. XX. § 29. Note 4.

[13. ]Orat Leuctric. II. p. 145. C. Vol. II.

[14. ]De Vit. Sophist. Lib. II. Cap. XV. § 2. p. 596. Edit. Olear.

[15. ]Ethic. Nicomach. Lib. V. Cap. XI. On the Contrary Cleon, to render the Cause of the Mitylenians odious, said, that they had with premeditated Design, laid Ambuscades for the Athenians, and in consequence deserved no Pardon, which is due only in Cases, where People act involuntarily, Lib. IV. Cap. XL. Philo the Jew praises his Nation, for their making a Difference, when they punished Injuries done them, between such as are used to commit Insults upon others, and those who observe a quite different Conduct. For, adds he, it is brutal and barbarous to kill without Mercy all who come in the Way, without distinguishing those who have had little or no Share in the Offence. De constit. Princip. (p. 734. B.) Grotius.

[16. ]Orat. de laud. Valent. Imp. Seneca observes, in speaking of Jupiter’s Thunderbolts, that if the Antients believed that God sometimes threw small ones, it was to instruct those who are charged with the Care of Punishing, and fulminating, to use that Expression, against the Crimes of Men, that they are not always to strike in the same Manner: That there are Cases wherein the Whole is to be broken, others in which slightly hurting is sufficient, and some where only shewing the Bolt is enough. Illos vero altissimos viros, &c. Natur. Quaest. Lib. II. Cap. XLIV.

[17. ]Such was Trajan, one of the best of the Roman Emperors. Xiphilinus gives him this Praise, in his Life, (p. 230. Edit. Rob. Steph.) Herodian also says in praise of Marcus Antoninus, that he was the only Emperor who applied himself to Philosophy, in which he shewed the Progress he had made, not by his Discourse, or the vain Ostentation of Science, but by the Gravity of his Manners, and the Regularity of his Life. (Lib. I. Cap. II. Num. 6. Edit. Boecler.) Macrinus, another Roman Emperor, observed the Laws more exactly than he was acquainted with them. Xiphilinus, in ejus vit. (p. 342.) GOD grant us such good Princes in these Days! Grotius.

[18. ]De Bell. Jud. Lib. V. Cap. XIII. (VI. 5. Latin.) p. 912. B. The Emperor gives this as a general Maxim, that when a single Person has committed the Offence, it is necessary to punish him really; but when a Multitude are criminal, it suffices to menace them. So that we see our Author does not exactly give the Sense of the Jewish Historian.

[a ]See Gailius, De pace publ. l. 2. c. 9. n. 18.

[b ]Lib. 9. c. 85.

[1 ]In all the Editions before mine they are called Principes Ardeae; that is to say, the principal Persons in the City, instead of the Ringleaders of the Insurrection. But I believed, that the Copists or Printers had left out the Word seditionis, from its Likeness to securi, which follows; tho’ our Author never perceived it, as has happened to him in other Instances. However it was, the Original is, Romanus Consul [M. Geganius] Ardeae turbatas seditione res, principibus ejus motus securi percussis, bonisque eorum in publicum Ardeatium reductis, composuit. Lib. IV. Cap. X. Num. 6.

[2. ]Oppido recepto Levinus, &c. Idem. Lib. XXVI. Cap. XL. Num. 13.

[3. ]Atellaque & Calatia, &c. Ibid. Cap. XVI. Num. 5.

[4. ]Quoniam auctores defectionis, &c. Ibid. Lib. VIII. Cap. XX. Num. 11. and Cap. XXI. Num. 10.

[5. ]Vicit sententia lenior, &c. Idem. Lib. XXVIII. Cap. XXVI. Num. 3.

[6. ]Supplic. ver. 878, 879.

[7. ]Lib. III. Cap. XXXVI. The Sense of the last Words is clear; but there is some Difficulty in the Expression: Upon which the Reader may, if he pleases, consult a Note of the late Mr. Perizonius, in Aelian, Var. Hist. III. 43. Note 4. p. 288.

[1 ]Heic ignoscendi ratio queritur, &c. Lib. II. Cap. XVII.

[2. ]Hostes dimittet salvos, &c. De Clement. Lib. II. Cap. VII.

[3. ]Poenitebatque [Cerites] populationis, &c. Lib. VII. Cap. XX. Num. 2. This is what the Historian says, and it appears by the Sequel, the Cerites excused themselves by saying, that having only given Passage to the Tarquinians, some Peasants purely by their own Authority, had joined them, in order to go and plunder the Lands of the Romans. Those Kinsmen, of whom our Author speaks, were therefore the Tarquinians. But a faulty Punctuation in all the Editions, not excepting the first, had so much disfigured the Passage, that it made the Phoceans, a People of Greece, the Relations of the Cerites, a People of Etruria. In this Supposition, the learned Gronovius criticises our Author in this Place, and he takes great Pains to discover the Origin of a Fault which he finds in the following Period. This is one of the Places wherein the first Edition has been of most Use to me, and might alone shew how necessary it was to compare the Text with that Edition, and the others of antient Date. In the Margin there was Appian. Syr. That Citation being omitted, I know not how, in all the Editions I have seen, after the first, prevented Gronovius from consulting the Historian from whom our Author had extracted the Fact, and whose Passage being found, immediately shews the faulty Punctuation, which ought to be placed to the Account of the Printers or Copists. See Note 6. of this Paragraph. So that the Fault of our Author consists in his not having perceived, that, contrary to his Intent, they had put quod fuerint auxilio consanguineis Phocensibus Chalcidensibus, & aliis, qui, &c. instead of quod fuerint auxilio consanguineis. Phocensibus, Chalcidensibus & aliis, &c. as I have printed it in my Latin Edition.

[4. ]Isocrates says, that a conquered Prince ought sometimes to be pardoned, who did not know the Justice of the Conqueror’s Cause. The Passage has been translated by Ammianus Marcellinus. UtIsocratismemorat pulchritudo; cujus vox est perpetua docentis, Ignosci debere interdum armis superato Rectori, quam justum quid sit ignoranti. Lib. XXX. (Cap. VIII.) Grotius.

I do not know whether the Passage of the Greek Orator is to be found amongst the Remains of his Works. At least the Words which the learned Valois cites from the Oratio Panathenaica, are entirely foreign to the Subject.

[5. ]Appianus Alexandrinus says this of the General Manius Acilius Glabrio. De Bell. Syr. p. 160. (98. Edit. H. Steph.) See Note 4. above.

[6. ]Orat. Leuctr. II. p. 135. Vol. II. Edit. Paul. Steph.

[7. ]Partâ autem victoriâ, &c. De Offic. Lib. I. Cap. XI.

[8. ]Plutarch gives us this Saying of Ptolomy’s, when he sent back the Baggage and Prisoners to Demetrius, after having defeated the latter in a Battle near Gaza. In Vit. Demetr. p. 891. A. Vol. I. Edit. Wech.

[9. ]Lib. III. Cap. VI. Num. 9. Edit. Boecler.

[10. ]Erat obscuritas quaedam, &c. Orat. pro Marcell. Cap. X.

[11. ]Etsi aliquâ culpâ tenemur erroris humani a scelere certâ liberatisumus. (Ibid. Cap. V.) So Thucydides lays down as a Maxim, καὶ ξυγγνώμη, &c. Lib. I. Cap. XXXII. Grotius.

[12. ]Neque enim ille [Dejotarus] odio tui progressus, sed errore communi lapsus est. Orat. pro Reg. Dejot. Cap. III.

[13. ]Cetera multitudo vulgi, &c. Orat. I. ad Caesar. De Rep. ordinand. Cap. XXXIV. Lib. VI. Fragm. Edit. Wass.

[14. ]Scribis enim, acrius, &c.Cicero, Epist. II. ad Brut. See Bembo, Hist. Lib. IX. Grotius.

[1 ]Theodorick, King of the Goths, said, that the most successful Wars he had made, were those in which he had used Moderation in Victory. Moderation, adds he, is a continual Victory to him who knows how to manage it. Illa mihi feliciterbella provenerunt, quae moderato fine peracta sunt, Is enim vincit adsidue, qui novit omnia temperare.Cassiodorus, Var. II. 41. Grotius.

[2. ]Et ignoscendo Populi Romani magnitudinem auxisse, &c. Orat. I. Philipp. Fragment. I. 13.

[3. ]Verum ita majoribus placitum, &c. Annal. Lib. XII. Cap. XX. Num. 4.

[4. ]Muliebre est, furere in ira: Ferarum vero, nec generosarum quidem, praemordere & urgere projectos. Elephanti Lionesque transeunt, quae impulerunt. De Clement. Lib. I. Cap. V.

[5. ]Aeneid, Lib. X. ver. 528, 529.

[6. ]Item: Bene majores nostri, &c. Lib. IV. Cap. XVI.

[7. ]Cautior licet sit, qui devinctos, &c. (Panegyr. Vet. VI. Cap. X. Edit. Cellar.) I am far from approving the Revival of the Custom the Orator speaks of. We see however that Joshua caused the Kings he had taken to be put to Death. Josephus, Antiq. Jud. Lib. V. Cap. I. Cajus Sossius, having defeated Antigonus King of the Jews, caused him to be whipped, being fastened to a Cross. Dion Cassius, who relates this, (Lib. XLIX. p. 463. D. Edit. H. Steph.) adds wisely, that no conquered King had ever been used so by the Romans. There is the same History in Josephus, Antiq. Jud. Lib. XV. (Cap. I.) Eutropius tells us, that Maximianus Herculius [or rather Constantine] having made the Kings of the Franks and Germans Prisoners, exposed them to fight with wild Beasts, in the magnificent Games he had prepared to exhibit. Qui [Constantin.] in Galliis, &c. Lib. X. (Cap. II. Num. 9.) See what Ammianus Marcellinus says of one of the Kings of the antient Germans, who was hanged, Lib. XXVII. (Cap. II.) Theodorick, King of the Wisigoths, caused Athiulphus, King of the Suevi, who had settled in Spain, to be put to Death, as Jornandes tells us, in his History of the Goths, (Cap. XLIV.) These Examples ought to teach Kings to be moderate and discreet in Prosperity, and to reflect, that when God pleases, they are subject, as well as others, to the most unhappy Vicissitudes of human Events; in a Word, that according to Solon’s Thought, which Croesus called to mind in a like Danger, nobody can be deemed happy before Death. Grotius.

The last Fact is related by Herodotus, Lib. I. Cap. LXXXVI. As to Antigonus, King of the Jews, his Head was cut off by the Order of Mark Antony, whose Lieutenant Sossius was in Syria, and who, in favour of Herod, did not reserve that unfortunate Prince for the Day of his Triumph; and it is in this Kind of Death by which no conquered King had ever been punished before, that Strabo, whose Words Josephus has preserved, makes the Novelty of the Example consist, as appears also by Plutarch, Vit. Anton. p. 932. C. As to the Words of the antient Panegyrist, in which our Author corrects the manifestly corrupt Reading: The same had been done before him by the Jesuit Julius Caesar Boulanger, in his Book De Spoliis bellicis, trophaeis, arcubus triumphalibus, & pompa triumphi, Cap. XXVIII. p. 76. Edit. Paris. 1610. which is followed by the later Editions. The learned Civilian Peter du Faure, in his Semestria, Lib. II. Cap. III. p. 35. proposes another, which is not so natural. Gronovius is also for having calcatStratos, instead of calcatIratos, read in the Beginning of the Passage.

[8. ]De Bell. Jud. Lib. VII. p. 979. E. F.

[9. ]Tamen quum de Foro in Capitolium, &c. In Verr. Lib. V. Cap. XXX.

[10. ]He was the Bastard of Eumenes, King of Pergamus, and, notwithstanding the Will of his Brother Attalus, the legitimate Son, who had appointed the Roman People his Heirs, had taken Possession of the Crown. But he reigned in such a Manner that he was afterwards acknowledged lawful King, as Justin insinuates, Quum multa secunda praelia adversus civitates, quae metu Romanorum se ei tradere nolebant, fecisset; justus Rex jam videratur, &c. Lib. XXXVI. Cap. IV. Num. 7. So that the Remark made here by Gronovius, in Vindication of the antient Romans, is not entirely just. See Velleius Paterculus concerning this Prince’s Death, Lib. II. Cap. IV. And Eutropius, Lib. X. Cap. I.

[11. ]See upon the Death of this King of Numidia,Livy, Epitom. Lib. LXVII. and Eutropius, Breviar. Lib. IV. Cap. XI. in fin.

[12. ]Or rather Artavasdes, for so the Roman Authors write this King of Armenia’s Name. Here the learned Gronovius remarks with Reason, that Mark Antony caused Artavasdes to be put to Death, by his own Authority, and without the Senate’s Approbation, after having taken him by Treachery, and led him in Triumph, not at Rome but Alexandria.Tacitus exclaims highly against that Perfidy. Infida [Armenia] ob scelus Antonii, qui Artavasden Regem Armeniorum, specie amicitiae inlectum, dein catenis oneratum, postremo interfecerat, Annal. Lib. II. Cap. III. Num. 2. See Velleius Paterculus, Lib. II. Cap. LXXXII.

[13. ]The Historians do not agree about the Manner of this Prince’s Death, who was King of Part of Numidia. Several make him die near Rome, before the Day of the Triumph, [at Tibur or Tivoli. See Livy, at the End of the thirtieth Book. Cap. ult. Num. 4.] Polybius on the contrary says, that he was led in Triumph. Appianus Alexandrinus relates, that he died of a Distemper, whilst they were debating what to do with him. [De Bell. Punic. p. 15. Edit. Steph.] Grotius.

Polybius says, that this conquered Prince died in Prison some Days after having been led in Triumph. Lib. XVI. Cap. XII. Silius Italicus seems to insinuate that only the Effigy of Syphax was carried in Triumph, Punic. Lib. XVII. ver. 630. where the Reader may see Cellarius’s Note, and that of Mr. Drakenberg, the last Edition.

[14. ]He was a King of Illyria. See Livy, Lib. XLV. Cap. XLIII.

[15. ]He was the Son of the King of Numidia, and part of Mauritania. Julius Caesar, in the room of his Father, who was killed in a single Combat, led this young Prince, then an Infant, in Triumph. See Plutarch, in Caesar. p. 733. and Appianus Alexandrinus, De Bell. Civ. Lib. II. p. 491. Edit. H. Steph. His Life was not only spared, but he was so well educated, that he became more celebrated for his Writings than his Birth, and the Shadow of Royalty conferred on him by Augustus. See upon that Head the Treatise of Vossius, De Historic. Graecis, Lib. II. Cap. IV.

[16. ]A petty King of the antient People of Great Britain.

[17. ]Where he speaks of the Destruction of Corinth, De Offic. Lib. I. Cap. XI. and Lib. III. Cap. X.

[18. ]Excerpt. E. Lib. XXXI.

[19. ]Vit. Agid. p. 804. E.

[20. ]Lib. XVII. Cap. XXXVIII. p. 582. Edit. H. Steph.

[21. ]Alexander, quamquam belli, &c. Lib. IX. Cap. I. Num. 22.

[a ]Chap. 1. of this Book, § 4. Num. 5.

[1 ]In the latter Part of this Passage, read ἀναιτίοις instead of ἐναντίοις, as in the Editions. Lib. V. Cap. XI. Grotius.

[1 ]Puerum aetas excuset, Foeminam sexus. De Ira, Lib. III. Cap. XXIV. The Lion, when enraged, falls upon Men rather than Women, and does not hurt Children but when pressed with extreme Hunger, as an antient Naturalist observes. Etubisaevit [Leo] &c.Pliny, Lib. VIII. Cap. XVI. Horace representing Achilles, as a Warrior void of Pity, that did not spare even Infants, without excepting those in their Mother’s Womb; professes by a lively Exclamation, that he looks upon this as an horrible Excess of Fury.

• Sed palam captis gravis, heu nefas heu!
• Nescios fari pueros Achivis
• Ureret flammis, etiam latentes
• Matris in alvo.

Lib. IV. Od. VI. ver. 17. & seqq. An antient Scholiast observes upon this Passage, how much the Poet expresses his Dislike of such Barbarity, [Heu nefas] Dolenter exclamat in saevitiam Achilles, qui si per Apollinem vivere licuisset, adeo saevus erat, ut nec infantibus, nec in utero gestantibus pepercisset.Philo the Jew says, that it was a Rule of War with his Nation, to release the Maids and Wives taken Prisoners, without doing them any Hurt, and he gives this Reason for it; that it would have been great Inhumanity to have destroyed with the Men that Sex, which their natural Weakness made incapable of War. De Princip. constitut. (p. 734. A. B. Edit. Paris.) He observes elsewhere, that between Persons at Years of Discretion, a thousand specious Reasons may be found to justify Quarrels and Enmity; but that as to Infants lately come into the World, Malice itself cannot make those innocent Creatures guilty of any Thing, with the least Appearance of Reason. De special. Leg. Lib. II. (p. 795. D.) Josephus speaking of Manahem, who, after taking the City of Thapsus, spared not even the Infants, calls that the utmost Excess of Cruelty and Barbarity. That Usurper, adds he, treated the People of his own Nation in a Manner that would have been unpardonable, even tho’ he had to do with conquered Strangers. Antiq. Jud. Lib. II. (Cap. XI. p. 320. D.) The same Jewish Historian informs us, that Judas Maccabaeus having taken the Cities of Bosra and Ephron, put all the Males to the Sword, with all those who were capable of bearing Arms. [Ibid. Lib. XII. Cap. XII. p. 417. B. G.] In another Place he calls the Fury of Alexander, surnamed the Thracian, an inhuman Revenge, in causing the Wives and Children of the Jews to be put to Death with them, and before their Eyes. [Lib. XIII. Cap. XXII. p. 461. C.] Agathias makes this Reflection upon the Romans, whatever just Reason they might have for punishing the Missipians, they were inexcusable, for having been so unmerciful to murder the Children at their Mother’s Breasts, and who, consequently, could have no Share in their Father’s Crimes: Nor did such Cruelty remain unpunished: (Lib. IV. Cap. VI.) Nicetas, or the Person who continues his History to the Reign of Henry, condemns in stronger Terms a like Excess of Hostility, committed by the Scythians, in taking the City of Atyra. They spared, says he, not even Infants at the Breast; those young Plants were cut down like Grass, or tender Blossoms, by those merciless Victors, who did not know that it is sinning against Nature, and violating the common Right of Men, to extend Rage beyond Victory, and to act with Fury against a reduced Enemy. (In Vit. Balduin. Cap. IX.) See also what Bede says, Lib. II. Cap. XX. concerning the Cruelty of Carevolla; and the merciful Orders given by Queen Elizabeth, according to Cambden, upon the Year 1596. (p. 668.) Simler recites a good Law instituted by the Swiss, [which prohibits the doing any Injury to the Women, unless a Woman has furnished the Enemy with Arms, thrown Stones, or exercised some other Act of Hostility. De Rep. Helvet. Lib. II. p. 302. Edit. Elzevir.] Grotius.

[2. ]Num quis irascitur, &c. De Ira Lib. II. Cap. IX.

[3. ]Pharsal. Lib. H. ver. 108.

[4. ]Sunt & belli, sunt pacis jura, &c. [Lib. V. Cap. XXVII. Num. 7.]

[5. ]Vit. Camill. p. 134. B.

[6. ]In the Passage of that Historian, which our Author has in View, the Reading is integra dignitate. The Whole is as follows, Eam namque vir sanctus & sapiens veram sciebat victoriam, quae, salva fide, & integra dignitate, pareretur. Lib. I. Cap. XII. Num. 6. It relates to Camillus also, who would not take the Advantage of a Schoolmaster’s Treachery.

[7. ]Puellis, ut saltem parcerent, orare institit; a qua aetate etiam hostes iratos abstinere, &c. Lib. XXIV. (Cap. XXVI. Num. 11.)

[8. ]Trucidant inermes juxta atque armatos, foeminas pariter ac viros, usque ad infantium caedem ira crudelis pervenit. Lib. XXVIII. Cap. XX. Num. 6.

[9. ]Lib. I. Sylv. VI. ver. 53.

[10. ]Ner. Quod parcis hosti.Prae. Femina hoc nomen capit? Octav. (ver. 864.) For this Reason Tucca and Varus were for striking out of the Aeneid, the Verses where Aeneas deliberates whether he shall kill Helen.Grotius.

The Passage begins at the 567th, and ends at the 588th Verse. Jamque adeo super unus eram, &c. Talia jactabam & furiata mente ferebar. The Reader may see the Notes of Father Catrou, the last French Translator.

[11. ]Bellum cum captivis & foeminis gerere non soleo: Armatus sit oportet, quem oderim. Lib. IV. (Cap. XI. Num. 17.)

[12. ]Contra Gryphus orare, &c. Lib. XXXIX. Cap. III. Num. 7.

[13. ]The Historian makes Arminius say this in Regard to Women with Child. Non enim se proditione, &c. Annal. Lib. I. Cap. LIX. Num. 4.

[14. ]Efferatam crudelitatem suam, &c. Lib. IX. Cap. II. Num. 4.

[15. ]Lib. XIII. (Cap. LVII. p. 360. Edit. H. Steph.)

[16. ]Et in sexum, cui bella parcunt, in pace saevitum, (Cap. XXIX. Edit. Cellar.)

[17. ]Thebaid. Lib. V. ver. 258, 259.

[1 ]Atque haec tamen hostium, &c. Lib. XXVIII. Cap. XXIII. Num. 1.

[2. ]This Reflection the Jewish Historian ascribes to Vespasian and Titus, who, notwithstanding the Instances of the People of Alexandria and Antioch, would not deprive the Jews settled in those two Cities of the Rights and Privileges they had enjoyed till then. Those of that Nation, said they, who took up Arms against us, have been sufficiently punished by the unfortunate Event of their Rebellion: For the Rest, who have done no Ill, it would be unjust to deprive them of what they possess. Antiq. Jud. Lib. XII. Cap. III. p. 398. D.

[3. ]Et Dictator [Camillus] &c.Livy, Lib. V. Cap. XXI. Num. 13.

[4. ]This merits particular Observation. The Security of Persons of this Kind, and of all others, whose Manner of Life has in itself no Relation to the Business of War, is founded upon the Supposition that they act nothing in any Manner against an Enemy. But if an Ecclesiastick abandons his Prayer-Book, to enter into the Councils of Princes, if he is the first Promoter of a War, and even takes the Field, and commands Troops, either directly or indirectly, he deserves to be spared the less, as he acts contrary to the Engagements of his Character. See Felden’s Note upon this Place; and what is observed above, concerning the Canons prohibiting Ecclesiasticks to carry Arms. B. I. Chap. V. § 4. Note 2. and B. II. Chap. I. § 13. Note 5.

[5. ]The Rabbins say, that Hyrcanus, at the very Time he besieged Jerusalem, sent Victims into the Temple. Procopius praises the Goths, for having spared the Priests of the Churches of St. Paul and St. Peter, which were at some Distance from Rome. Gotthic. Lib. II. (Cap. IV.) See the Supplement of Charlemagne to The Law of the Bavarians and Lombards, Lib. I. Tit. XI. Num. 14. Grotius.

[6. ]Quaest. Graec. XXI. p. 296. C.

[7. ]Servius informs us, that in Italy they paid this Regard to Priests and Priestesses, as well as to old Men, Quia vatem. Nam eam defendebat a bellis, si non aetas, saltem religio Sacerdotis. Ad Aeneid. Lib. VII. (ver. 442.) Grotius.

The Passage of Servius does not relate to the Safety of Priests in Time of War; but he means that their Character excuses them from being concerned in Affairs of War. The Reader need only see the Sequel of the Discourse in the Verses of the Poet, to be assured that this must be the Commentator’s Sense. As to the Greek Proverb, which our Author repeats, he took it from Suidas, at the Word Πυρϕόρος. According to that Lexicographer, to express that no Quarter was given to any one, it was usual to say, that not a single Priest had escaped, that is not one of those who marched in the Front of the two Armies. They carried a Torch in their Hands, as the Scholiast upon Euripides informs us in the Phoenissae, Ver. 1386. from whence they were called Πυρϕόροι, Fire-bearers: And in Consideration of their Character, no Hostility was exercised against them. Erasmus, in his Adages, upon the Proverb, Ne ignifer quidem reliquus est factus, cites Eustathius in this Place, in Iliad, Lib. XII. Ver. 73. See also the Commentators upon Pollux, Lib. VIII. § 116. Edit. Amst.

[8. ]Geogr. Lib. VIII. (p. 358. Edit. Casaub. Paris.) See also Polybius, Hist. Lib. IV. (Cap. LXXIII.) and Diodorus Siculus, Excerpt. Peiresc. (p. 225.) Those who went to Combat in the Olympick, Pythian, Nemaean, or Isthmian Games, enjoyed also an entire Security in Time of War. Thucydid. Lib. V. and VIII. Plutarch, Vit. Arat. (p. 1040. B.) Grotius.

[9. ]Conversi, Converts, which is not so common and intelligible in the Sense it is here used as Lay Brother, which is also derived from the Latin Frater laicus. These are Persons, who retire into Convents, but are not in Orders, do not sing in Choirs, nor make the Vow of Poverty. Our Author stiles them Penitents, because they were originally secular Persons converted, who engaged in that way of Life by way of Penance. See the Authors cited here by Gronovius.

[10. ]Innovamus, ut Presbyteri, Monachi, Conversi, Peregrini, Mercatores, Rustici, euntes vel redeuntes, vel in agricultura existentes & animalia, quibus arant & semina portant ad agrum, congrua securitate laetentur. Decretal. Lib. I. Tit. XXXIV. De Treuga & Pace, Cap. II.

[1 ]See the Canon cited in the last Note of the preceding Paragraph.

[2. ]Lib. II. Cap. XXXVI. p. 86. Edit. H. Steph.

[3. ]Quaest. Graec. p. 295. B.

[4. ]He offered the King of Assyria to spare his Husbandmen, provided that on his Side he did no Hurt to the Husbandmen of those Provinces that had engaged in his Party. Cyrop. Lib. V. Cap. IV. § 12. Edit. Oxon.

[5. ]Voc. βελισάριος. Grotius.

[1 ]See the Canon cited, § 10. Note 10.

[a ]Ch. 10. § 1. Note 1.

[1 ]Et in mancipio cogitandum est, non quantum illud impune pati possit, sed quantum tibi permittat, aequi bonique natura: Quae parcere etiam Captivis & pretio paratis, jubet. De Clement. Lib. I. Cap. XVIII.

[b ]Sect. 9. of this Chapter, Note 8.

[2. ]Hostem pugnantem necessitas, &c. Ad Bonifac. Epist. CCV. Gratian, in repeating this Passage, says in the beginning, necessitas deprimat, and not perimat, (Caus. XXIII. Quaest. I. Can. III. ex Epist. CCVII.) Epaminondas and Pelopidas, when they gained a Victory, never put any of the Conquered to Death, nor deprived any City of its Liberty: So that it was said of them, had they been present, the Thebans would never have treated the Orchomenians as they did: This Plutarch tells us, Vit. Marcell. (p. 316. D.) Marcellus acted with the same Lenity, at the taking of Syracuse, as the same Historian testifies, Ibid. (p. 308. D.) See also what he says in the Life of Cato Uticensis, (p. 787. C. D.) Tacitus says of Primus Antonius, and Varus Arrius: Quos [Primum Antonium Varumque Arrium] recentes, clarosque rerum fama, &c. Hist. Lib. V. (Cap. XXXIX. Num. 4.) Cabades, King of Persia, having taken the City of Amida, as his Troops made a great Slaughter of the Inhabitants, a Priest represented to that Prince, that it was unworthy of a King to massacre the Conquered. Procop. Persic. Lib. I. (Cap. VII.) The Author who relates this says elsewhere, that it is a vile Action to discharge one’s Fury upon Prisoners of War. Lib. II. (Cap. IX. in the Speech of Cosroez to the Roman Embassadors.) See also, in the same Historian, the fine Speech of Belisarius to his Soldiers, after the taking of Naples. Gotthic. Lib. I. (Cap. IX.) When Somebody advised the Emperor Alexis to put his Scythian Prisoners to Death, he replied: That the Scythians, tho’ Scythians were however Men: And their having been our Enemies does not make them unworthy of our Compassion. Anna Comnena, (Lib. VIII. Cap. IV.) Nicephorus Gregoras says, that whatever is done in the heat of Fight is excusable in some manner, because at that Time Men are not their own Masters, and act with a blind Impetuosity: But that when the Danger is over, and the Mind in its natural Situation has Time and Liberty to examine all Things aright, if they do not restrain their Power, it is a sign they pay no regard to what Decency requires, and trample upon all Consideration of Duty, Lib. VI. (p. 92. Edit. Colon. 1616.) See another Passage of the same Historian, which we have cited in a Note at the End of the seventh Chapter of this Book, and what Chalcoconoylas says of a certain laudable Custom amongst the Poles, Lib. V. The Emperor Julian, in his Praise of Constantius, to give an Idea of a good Prince says, that when he had gained a Victory he put an immediate stop to the Slaughter, convinced that it was infamous to deprive People of their Lives, when they defended themselves no longer. (Orat. p. 86. C. Edit. Spanheim.) Grotius.

[3. ]De Agesil. Cap. I. § 21. Edit. Oxon.

[4. ]Lib. XIII. (Cap. XXIV. p. 434. Edit. H. Steph.)

[5. ]Lib. XVII. (Cap. XIII. p. 568.)

[6. ]Numidae puberes interfecti, &c. Bell. Jugurth. Cap. XCVI. Edit. Wass.

[7. ]Instit. Divin. Lib. V. Grotius.

[8. ]Orat. II. De Pace, (p. 80. C. Vol. II.)

[9. ]Ver. 965, 966.

[10. ]Lib. XII. Cap. LXXXII. p. 328.

[11. ]Lib. XIII. Cap. XXVI. p. 344. Capitolinus praises the Emperor Marcus Antoninus for observing the Rules of Equity even with regard to his Prisoners of War: Aequitatem etiam circa captos hostes custodivit, Cap. XXIV.

[12. ]See Note (1) on this Paragraph.

[13. ]Our Author makes this Reflection after Albericus Gentilis, (De Jure Belli, Lib. II. Cap. XVI. p. 344.) The latter alledges two Examples of this Kind, the one taken from Buchanan, and the other from Paulus Jovius. In the first, we see, in the Reign of Robert I. King of Scotland, the Earl of Mar, having almost as many Prisoners as Troops of his own, contented himself with making them swear, that they would lie still, when the two Armies came to Blows, and should continue Prisoners even tho’ the English should be strong enough to set them at Liberty. Rerum Scotic. Lib. IX. p. 320. Edit. Amstel. 1643. The Historian makes many Reflections in the same Place upon the Generosity and Humanity with which the Prisoners were treated. As to that of Paulus Jovius, he speaks of the Duke D’Anguien, who after the Battle of Cerisoles released all the Prisoners, to rid his Camp of useless Mouths, that consumed his Provisions; and required only from them, that the Spaniards should return into Spain, and the Germans into Germany by the Way of France. Hist. Lib. XLV. seu ult. circa init. p. 267. Vol. III. Edit. Basil. 1556.

[1 ]The Romans informed the Persians besieged in the Citadel of Petra, that resolved as they seemed to perish, they chose rather to preserve their Lives, out of a Compassion worthy of Romans and Christians. Procop. Gotthic. Lib. IV. (seu Hist. Miscell. Cap. XII.) See Serranus in the Life of Francis I. and in that of Henry II. Grotius.

[2. ]De Expedit. Alexandr. (Lib. I. Cap. IX.)

[3. ]Cap. LVIII. Edit. Oxon.

[4. ]Lib. XI. in fin.

[5. ]Νόμος ἐστὶ τοὺς ἱκέτας σώζειν ἐν τοι̑ς πολέμοις.

[6. ]Ad haec Caesar respondit, Se magis consuetudine suâ, quam merito eorum, civitatem [Atuaticorum] conservaturum, si prius, quàm aries murum attigisset se dedidissent, &c. De Bell. Gall. Lib. I. Cap. XXXII.

[7. ]Et cum iis, quos vi deviceris, consulendum est, &c. De Offic. Lib. I. Cap. XI.

[8. ]See on that Head the Passages cited by Selden, De Jure Nat. & Gent. secundum discipl. Hebr. Lib. VI. Cap. XV. in fin. Our Author observes here in a short Note, that Scipio Aemilianus, at the Time he was preparing to destroy Carthage, made Proclamation, that whoever would, might quit it with Safety. He cites Polybius to prove this in general, without referring to any Passage. But I can find nothing like it in that Historian, and am very much mistaken, if our Author had not in his Thoughts what he had read in Florus, upon the Summons made to the Carthaginians, when the Romans had resolved that they should quit their Country: Tum evocatis principibus, si salvi esse vellent, ut migrarent finibus, imperatum, Lib. II. Cap. XV. Num. 8. And perhaps his Memory at the same Time had recalled a confused Idea of the Proposals, Scipio caused to be made to Asdrubal by Gulussa, as Polybius relates, Excerpt. Peiresc. p. 178. from whence arose this mixture of two Facts, and the confounding of two Authors.

[1 ]Quod aspernati sunt victores, quia trucidare deditos saevum, &c. Annal. Lib. XII. Cap. XVII. Num. 2.

[2. ]The Passage is cited in Note 6. upon § 13. of this Chapter. The other which our Author cites is: Alios item non armatos, neque in praelio belli jure, sed postea supplices, per summum scelus interfectos. Orat. de Rep. ordin. Cap. XXXVI. Edit. Wass.

[3. ]In the beginning of § 10.

[4. ]Qui [C. Popilius] deditis, contra jus ac fas bellum intulisset, &c. Lib. XLII. Cap. XXI. Num 3.

[5. ]Vit. Brut. p. 996. A. I do not know, why our Author translates the Word περιΐππευσε by equitatu circumdedit. It only signifies, that Brutus rode about on all Sides to give Orders to his Troops not to charge the Enemy, and not that he invested them with his Cavalry.

[1 ]Our Author here had Albericus Gentilis in View, De Jure Bell. Lib. II. Cap. XVIII. where that Lawyer adds some other Cases. But I find no Example of this, unless that of Subjects, who have unjustly taken Arms against their lawful Sovereign, without any plausible Reason whatsoever, may be intended. See below, Chap. XIX. § 6. Num. 1. It was principally for this Reason, that in the War of the Peasants of Germany, which began in 1525. Count Truchses punished with an exemplary Death most of the Rebels, whom he had reduced to surrender. See the History of that Insurrection by Peter Gnodal, p. 292. & seq. Edit. Basil. 1570.

[2. ]As the Thebans did when besieged by Alexander the Great, (Diod. Sicul. Lib. XVII. Cap. IX. and XIII.) and the Athenians, beseiged by Sylla.Plutarch, De Garrulitate, Vol. II. p. 505.) Gronovius gives us the first of these Examples. The latter had been cited before by Albericus Gentilis, (ubi supra, p. 377.) where the Reader may find several others. See also Dissertation XIX. of Obrecht, intitled, Hostis dedititius, § 24.

[3. ]So Julius Caesar caused Publius Ligarius to be put to Death, who was perjured and perfidious. Hirtius, De bello Africano, Cap. LXIV. See other Examples in Albericus Gentilis, p. 379. & seq.

[4. ]See also Albericus Gentilis here, p. 382.

[5. ]Examples of this may be found in the same Author, p. 383. & seq.

[a ]B. 2. ch. 21. § 18.

[6. ]Orat. II. De Pace, p. 75. C. Vol. II.

[7. ]He calls this the most inhuman of Timoleon’s Actions, who might if he had pleased have prevented that unjust Punishment. Vit. Timoleont. p. 252. C. See also Dion’s Life, p. 983. E. and Diodorus Siculus, Biblioth. Lib. XIV. Cap. XLVII.

[8. ]PolyaenStrateg. Lib. IV. Cap. III. Num. 30.

[9. ]De Exped. Alex. Lib. I. Cap. XX.

[10. ]Lib. XIV. Cap. CXIII. p. 453. Edit. H. Steph.

[11. ]Pharsal. Lib. VII. Ver. 312. & seq.

[12. ]Iliad Lib. XXIII. Ver. 176. Servius observes, that the Custom of putting Prisoners of War to Death upon the Tombs of the bravest Warriors, seemed in process of Time to have something cruel in it: Sane mos erat in sepulchris virorum fortium captivos necari: Quod postquam crudele visum est, placuit, &c. In Aeneid. X. (Ver. 519.) Grotius.

See the Parrhasiana of Mr. Le Clerc, Vol. I. p. 12, 13.

[a ]See B. 2. c. 13. § 4.

[1 ]In singulos severitas Imperatoris, &c. De Ira, Lib. II. Cap. X. The Scholiast upon Juvenal cites a Passage from Lucan, where he says, that Crimes committed by a Multitude pass with Impunity:

• • ——— Quidquid multis peccatur inultum est.

[Pharsal. Lib. V. Ver. 260.] Livia, the Wife of Augustus, represented, that if every Thing were to be punished as it deserved, the greatest Part of Mankind would be destroyed. ApudXiphilin. exDion. Cass. (p. 87. Edit. Rob. Steph.) St. Austin says, that Crimes committed by a few Persons should be punished with Rigour: But when a Multitude are criminal, they should be instructed rather than commanded, and Reprimands preferred to Menaces: Non ergo aspere, quantum existimo, &c. Epist. LXIV. See Gailius, De Pace publica, Lib. II. Cap. IX. Num. 37. Grotius.

[2. ]Pharsal. Lib. II. Ver. 198. & seq.

[3. ]Ne autem nimium multi poenam capitis subirent, ideo illa sortitio comparata est. Orat. pro Cluent. Cap. XLVI. See what I have said in my Dissertation upon the Nature of Chance, § 20.

[4. ]Neque quisquam te ad crudeles poenas, aut acerba judicia, invocat, quibus civitas vastatur magis, quam corrigitur, &c. Orat. II. Ad Caesar. De Republ. ordinand. Cap. XL. p. 119. Edit. Wass.

[a ]B. 2. ch. 21. § 2. B. 3. ch. 2. § 6.

[1 ]See above, Chap. IV. of this Book, § 14. and Albericus Gentilis, De Jure Belli, Lib. II. Cap. XIX. p. 395.

[2. ]Neque se in obsides innoxios, sed in ipsos, si defecerint, saeviturum: Nec ab inermi, sed ab armato hoste poenas expetiturum.Livy, Lib. XXVIII. Cap. XXXIV. Num. 10. The Emperor Julian made the same Declaration as Eunapius relates, Excerpt. Legat. I. (p. 213. Edit. Commelin.) Grotius.

[3. ]Some Persons, who had hid themselves to avoid being sent as Hostages, were punished for it as Nicetas informs us, Lib. II (Cap. VII. in Vit. Isac. Angel.) Grotius.

[4. ]Apud Regem Etruscum, non tuta solum, sed & honorata virtus fuit: Laudatamque virginem parte obsidum se donare dixit, Lib. II. Cap. XIII. Num. 9. See what will be said below, Chap. XX. § 54.

[1 ]These are Arrian’s Words, De Expedit. Alex. Lib. I. Cap. XXII. Grotius.

[2. ]Sallustiusduceslaudat, qui victoriam incruento exercitu deportarent,Ex Servio, in Aen. XI. Frag. p. 102. Edit. Wass.

[3. ]Rari excursus & fortuita pugna. German. (Cap. XXX. Num. 5.) Plutarch blames Demetrius, for exposing his Soldiers, rather for the sake of acquiring Glory by Combats, than any real Advantage. Demetr. p. 908. C. Grotius.