Or bar his punishment. . . .
Nor is the answer given him,
That act which law forbids not, shame forbids,
sufficiently forceful. For such conduct as that of Pyrrhus is forbidden by law, too—in fact, by that most sacred of natural precepts which declares that man must not be prodigally misused by his fellow man. Senecaf maintains that “the essential principles of equity and virtue demand that mercy be shown even to captives.” The theologian Augustineg admonishes us as follows: “Let it be by necessity, not by choice, that we lay low the enemy who battles against us. Just as he who offers warlike resistance is repaid with violence, so mercy is owed to him who has been captured through our victory, and especially to him from whom no disturbance of the peace is feared.” Wherefore Eurystheus also, according to Euripides,a declared that those hands would never be washed clean, which should fail to spare him whom the fortunes of war had spared. Farmers—that is to say, unarmed men who dwell amid the open fields and who readily yield to armed force—are properly included in more or less the same category. For what purpose is served by raging against these men, since they are not an obstacle to the conduct of the war, but rather, as Pollio was wont to say, a prize for the victor? In accordance with this very argument, however, a different criterion will prevail if the enemy is rendered stronger by the fact that agricultural activities have not been hampered.b
These same observations may be applied, moreover, to those subjects who act in good faith, or in other words, to those who have incurred no guilt. As Senecac says, the wise man “will let his enemies go unharmed, sometimes even with praise, if they have girded themselves for war with honourable motives, [for example,] in order to keep faith, in observance of a treaty, or in defence of freedom.”
But the guilty must by all means be punished,d in conformity with the Fifth Law. The right underlying this law does not cease to exist once victory has been attained, as does that other right [for which the war is prosecuted], a distinction which will be obvious to anyone who considers the matter at all carefully. Therefore, culpable persons ought to be subjected even to corporal punishment, provided only that the offence involved calls for such a penalty. When this is the case, the same judgement should be rendered in warfare as in legal trials.e Platof expresses admirably his approval of the discord attendant upon war, μἑχρις οὑ̑ ἂν οἱ αἴτιοι ἀναγκασθω̑σιν ὑπὸ τω̑ν ἀναιτίων ἀλγούντων δου̑ναι δίκην, “up to the point where those who have incurred guilt, are forced by the innocent victims of the original injury, to pay the penalty.” According to Diodorus Siculus,a Gylippus, in his oration against the Athenian captives, maintains that the said captives, overtaken by disaster because of their own wickedness and cupidity, are striving in vain to lay the [49′] blame on their ill fortune and to acquire the status of suppliants, since this defence is reserved for men of pure hearts which have been led astray solely by circumstances. For it was the intention of the authors of the law regarding suppliants, that mercy should be granted to the unfortunate, but that punishment should be inflicted on those who had transgressed with unjust intent. Gylippus then comes to the following conclusion: διόπερ ἑκουσίως ἑλόμενοι πόλεμον ἄδικον εὐψύχως ὑπομενόντων τὰ τούτου δεινά; “Wherefore, since they have begun an unjust war of their own free will, let them bear with fortitude the misfortunes attending that war.” Themistiusb follows a like trend of thought when he says that pardon should be extended to misfortune, correction to error, and punishment to iniquity. Under the third head he places those individuals who have been the instigators of rebellion; under the second, those who have been carried away, so to speak, by the impetus of war; and under the first, those who have succumbed to the party which at the time happened to be the stronger. Similarly, Velleiusc observes that the Athenians in the time of Mithridates were overwhelmed by their enemies and besieged by their friends, so that their hearts were outside the city walls while, in obedience to necessity, their bodies remained within the walls. This example may be used to confirm the distinction implicit in the saying that, “Some men are of the enemy, while others are with the enemy.” Accordingly, the victor, having attained judicial authority, will temper in the manner above indicated the punishments to be decreed.
So much, then, for the question of bodily attack.
Turning now to the matter of attack upon property, we shall have no difficulty in reaching the conclusion to be drawn in this connexion with respect to subjects. For we have explained elsewherea that property may be seized in order to ward off peril that menaces one’s own life or possessions, and that it may also be acquired on the ground of debt, the former right being derived from the laws of the first order [Laws I and II], and the latter from the laws of the third order [Laws V and VI]; but we have also statedb that subjects, even when innocent, are liable to attack in war in so far as they impede the attainment of our rights; now, all subjects, even those who do not themselves serve as soldiers,c impede our efforts by means of their resources, when they supply the revenue used in the procurement of those things which imperil our lives and which do not only hinder the recovery of our possessions but also compel us to submit to fresh losses;d and therefore, subjects must be deprived of such resources, unless it be considered just that we ourselves should pay the penalties attendant upon the pursuit of our rights. Nor is any distinction to be made here on the basis of varying circumstances among the different subjects, since the laws in question, as we have repeatedly pointed out, have regard not to the intent of one’s adversary but to his deed. [50]
Hence it is permissible to infer, not only that possessions maybe forcibly taken from the said subjects, but also that these possessions may be added to our own. For if, on the one hand, they were snatched away from us by these very subjects, whom we regard as personally under obligation to us because of their injurious conduct or for whatsoever reason, nothing could be more just than that we should take back by armed force that which could not be reclaimed in any different way; or if, on the other hand, it is a state that has wronged use or otherwise incurred a debt to us, there is even then nothing to prevent the seizure of the subjects’ goods in payment, since it has been demonstratedf above that such goods are liable to seizure for the debt of the state. This one restriction is imposed, however: that nothing shall be taken in excess of the debt due us, which is reckoned in such a way as to include reparation for both losses and costs. Moreover, the claim to reparations continues to operate as a cause even after victory has been achieveda and after the first-named cause, the need to ward off danger, has been dispelled. For our object in waging wars is nothing more nor less than attainment of our rights through victory. In the words of Livy,b “When all things have been surrendered to him who is the mightier in arms, it is the latter’s right and privilege to decide which of those things he shall choose to retain as victor,19 and exact from the conquered20 as a penalty.”
Therefore, we conclude that all subjects, at all times, are liable to despoliation, but not necessarily to forfeiture of their lives. For, as far as the question of our own peril is concerned, there are many persons who oppose us not at all by bodily violence, so that nothing is to be gained by inflicting violence of any kind upon their bodies; but there is no individual among the enemy who does not harm us with his possessions, even though he may be most unwilling to do so. Or, if we choose to view the question from the standpoint of the rights of creditors, we shall find that the goods of subjects, but not their persons, are liable to seizure for the debt of the state;c and consequently, in the case of reprisals, too, seizure of property is permitted but corporeal attack is prohibited.d Therefore, the argument relative to things is not valid when applied to persons. For he to whom something of lesser importance is permitted does not forthwith receive permission also for that which is of greater importance.
Moreover, although other writers have gone less thoroughly
