I once heard of a prince, and a great captain, having a narration given him as he sat at table of the proceeding against Monsieur de Vervins, who was sentenced to death for having surrendered Boulogne to the English, —[To Henry VIII. in 1544]—openly maintaining that a soldier could not justly be put to death for want of courage. And, in truth, 'tis reason that a man should make a great difference betwixt faults that merely proceed from infirmity, and those that are visibly the effects of treachery and malice: for, in the last, we act against the rules of reason that nature has imprinted in us; whereas, in the former, it seems as if we might produce the same nature, who left us in such a state of imperfection and weakness of courage, for our justification. Insomuch that many have thought we are not fairly questionable for anything but what we commit against our conscience; and it is partly upon this rule that those ground their opinion who disapprove of capital or sanguinary punishments inflicted upon heretics and misbelievers; and theirs also who advocate or a judge is not accountable for having from mere ignorance failed in his administration.
But as to cowardice, it is certain that the most usual way of chastising it is by ignominy and and it is supposed that this practice brought into use by the legislator Charondas; and that, before his time, the laws of Greece punished those with death who fled from a battle; whereas he ordained only that they be for three days exposed in the public dressed in woman's attire, hoping yet for some service from them, having awakened their courage by this open shame:
"Suffundere malis homims sanguinem, quam effundere."
["Rather bring the blood into a man's cheek than let it out of his
body." Tertullian in his Apologetics.]
It appears also that the Roman laws did anciently punish those with death who had run away; for Ammianus Marcellinus says that the Emperor Julian commanded ten of his soldiers, who had turned their backs in an encounter against the Parthians, to be first degraded, and afterward put to death, according, says he, to the ancient laws,—[Ammianus Marcellinus, xxiv. 4; xxv. i.]—and yet elsewhere for the like offence he only condemned others to remain amongst the prisoners under the baggage ensign. The severe punishment the people of Rome inflicted upon those who fled from the battle of Cannae, and those who ran away with Aeneius Fulvius at his defeat, did not extend to death. And yet, methinks, 'tis to be feared, lest disgrace should make such delinquents desperate, and not only faint friends, but enemies.
Of late memory,—[In 1523]—the Seigneur de Frauget, lieutenant to the Mareschal de Chatillon's company, having by the Mareschal de Chabannes been put in government of Fuentarabia in the place of Monsieur de Lude, and having surrendered it to the Spaniard, he was for that condemned to be degraded from all nobility, and both himself and his posterity declared ignoble, taxable, and for ever incapable of bearing arms, which severe sentence was afterwards accordingly executed at Lyons.—[In 1536] —And, since that, all the gentlemen who were in Guise when the Count of Nassau entered into it, underwent the same punishment, as several others have done since for the like offence. Notwithstanding, in case of such a manifest ignorance or cowardice as exceeds all ordinary example, 'tis but reason to take it for a sufficient proof of treachery and malice, and for such to be punished.