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16. On punishing cowardice

[Renaissance Jurisconsults such as Tiraquellus were concerned to temper the severity of the Law by examining motives and human limitations. Montaigne does so here in a matter of great concern to gentlemen in time of war.]

[A] I once heard a prince, a very great general, maintain that a soldier should not be condemned to death for cowardice: he was at table, being told about the trial of the Seigneur de Vervins who was sentenced to death for surrendering Boulogne.

In truth it is reasonable that we should make a great difference between defects due to our weakness and those due to our wickedness. In the latter we deliberately brace ourselves against reason’s rules, which are imprinted on us by Nature; in the former it seems we can call Nature herself as a defence-witness for having left us so weak and imperfect. That is why a great many1 people believe that we can only be punished for deeds done against our conscience: on that rule is partly based the opinion of those who condemn the capital punishment of heretics and misbelievers as well as the opinion that a barrister or a judge cannot be arraigned if they fail in their duty merely from ignorance.

Where cowardice is concerned the usual way is, certainly, to punish it by disgrace and ignominy. It is said that this rule was first introduced by Charondas the lawgiver, and that before his time the laws of Greece condemned to death those who had fled from battle, whereas he ordered that they be made merely to sit for three days in the market-place dressed as women:2 he hoped he could still make use of them once he had restored their courage by this disgrace – [C] ‘Suffundere malis hominis sanguinem quam effundere.’ [Make the blood of a bad man blush not gush.]3

[A] It seems too that in ancient times the laws of Rome condemned deserters to death: Ammianus Marcellinus tells how the Emperor Julian condemned ten of his soldiers to be stripped of their rank and then suffer death, ‘following,’ he said, ‘our Ancient laws’. Elsewhere however Julian for a similar fault condemned others to remain among the prisoners under the ensign in charge of the baggage.4 [C] Even the harsh sentences decreed against those who had fled at Cannae and those who in that same war had followed Gnaeus Fulvius in his defeat did not extend to death.

Yet it is to be feared that disgrace, by making men desperate, may make them not merely estranged but hostile.

[A] When our fathers were young the Seigneur de Franget, formerly a deputy-commander in the Company of My Lord Marshal de Châtillon, was sent by My Lord Marshal de Chabannes to replace the Seigneur Du Lude as Governor of Fuentarabia; he surrendered it to the Spaniards. He was sentenced to be stripped of his nobility, both he and his descendants being pronounced commoners, liable to taxation and unfit to bear arms. That severe sentence was executed at Lyons. Later all the noblemen who were at Guyse when the Count of Nassau entered it suffered a similar punishment; and subsequently others still.5

Anyway, wherever there is a case of ignorance so crass and of cowardice so flagrant as to surpass any norm, that should be an adequate reason for accepting them as proof of wickedness and malice, to be punished as such.