The Rights of War and Peace: In Three Volumes

Chapter XI. The Right of Killing in a just War, qualified

1420 u c h a p t e r x i u Moderation concerning the Right of killing Men in a just War. I. 1. But that is not to be allowed in a just War, as is commonly said, ——— 1 Arma 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, 2 for there is a Moderation required in XI. [[sic: I.]] (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, ascribesittoaSpiritof 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 observesthat 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 ——— I. That some Acts in a just War, are unjust in themselves . moderation concerning killing men 1421 Revenge and Punish-ment. The same Author commends the antient Times of the 3 Romans, when the Ends of their Wars were either mild, or rigorous, merely through Necessity. Seneca 4 calls those cruel, who having a just Cause to punish, have no Moderation in it. Aristides saith, 5 It 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 ’s 6 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, 7 If it be just, thus for such slight Trespasses to exact rigorous Punishments. And the sameAristides in his second Oration for Peace, saith, Consider not only the Reasons for 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.)Ausoniusintimates,thatPunishment 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 ReflectioninAgathias, 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. 1422 chapter xi punishing, but also the Persons to be punished, who we ourselves are, and what is the just Measure of Punishment. Minos is commended in...