International Law: LOAC

Henry V and the Law of Armed Conflict

By Benjamin Wittes
Sunday, March 3, 2013, 7:11 PM

I went to see a wonderful performance of Henry V this afternoon at the Folger Shakespeare Library---and I came away thinking about the law of armed conflict. I have wondered about early literary invocations of the laws of war before with reference to this play, but perhaps because I haven't seen Henry V since we founded Lawfare, it hasn't been on my mind of late---until today, that is. Henry V has three scenes that are saturated with legalism in warfare, both jus ad bellum and jus in bello. I thought I would lay them out here and see if Lawfare readers who know the history of the law of armed conflict better than I do may know of other early literary treatments of them.

On the jus ad bellum side, the play has---in the second scene---a remarkably lengthy and detailed legal analysis of whether the young King Henry's proposed invasion of France is appropriate, and whether his claim to the throne of France just. In it, Henry asks the Archbishop of Canterbury "to proceed/And justly and religiously unfold/Why the law Salic that they have in France/Or should or should not bar us in our claim." He specifically warns the archbishop to speak carefully, because the result of his legal analysis could be a war.

The archbishop responds with a kind of OLC opinion on French succession law in theory and practice:

Then hear me, gracious sovereign, and you peers,
That owe yourselves, your lives and services
To this imperial throne. There is no bar
To make against your highness' claim to France
But this, which they produce from Pharamond,
'In terram Salicam mulieres ne succedant:'
'No woman shall succeed in Salique land:'
Which Salique land the French unjustly gloze
To be the realm of France, and Pharamond
The founder of this law and female bar. 
Yet their own authors faithfully affirm
That the land Salique is in Germany,
Between the floods of Sala and of Elbe;
Where Charles the Great, having subdued the Saxons,
There left behind and settled certain French;
Who, holding in disdain the German women
For some dishonest manners of their life,
Establish'd then this law; to wit, no female
Should be inheritrix in Salique land:
Which Salique, as I said, 'twixt Elbe and Sala,
Is at this day in Germany call'd Meisen.
Then doth it well appear that Salique law
Was not devised for the realm of France:
Nor did the French possess the Salique land
Until four hundred one and twenty years
After defunction of King Pharamond,
Idly supposed the founder of this law;
Who died within the year of our redemption
Four hundred twenty-six; and Charles the Great
Subdued the Saxons, and did seat the French
Beyond the river Sala, in the year
Eight hundred five. Besides, their writers say,
King Pepin, which deposed Childeric,
Did, as heir general, being descended
Of Blithild, which was daughter to King Clothair,
Make claim and title to the crown of France.
Hugh Capet also, who usurped the crown
Of Charles the duke of Lorraine, sole heir male
Of the true line and stock of Charles the Great,
To find his title with some shows of truth,
'Through, in pure truth, it was corrupt and naught,
Convey'd himself as heir to the Lady Lingare,
Daughter to Charlemain, who was the son
To Lewis the emperor, and Lewis the son
Of Charles the Great. Also King Lewis the Tenth,
Who was sole heir to the usurper Capet,
Could not keep quiet in his conscience,
Wearing the crown of France, till satisfied
That fair Queen Isabel, his grandmother,
Was lineal of the Lady Ermengare,
Daughter to Charles the foresaid duke of Lorraine:
By the which marriage the line of Charles the Great
Was re-united to the crown of France.
So that, as clear as is the summer's sun.
King Pepin's title and Hugh Capet's claim,
King Lewis his satisfaction, all appear
To hold in right and title of the female:
So do the kings of France unto this day;
Howbeit they would hold up this Salique law
To bar your highness claiming from the female,
And rather choose to hide them in a net
Than amply to imbar their crooked titles
Usurp'd from you and your progenitors.

Henry asks in response: "May I with right and conscience make this claim?"

Canterbury replies: "The sin upon my head, dread sovereign!"

Later on, in the field in France, we see two references to jus in bello rules---both of them quite moving. The first involves the hanging of Henry's old friend from his wild days as a prince, Bardolph, for robbing a church. Informed that Bardolph is going to be executed, the king encourages it---this is invariably played in modern performances with pain and regret---and a speech about the conduct of warfare with regard to civilians in France:

We would have all such offenders so cut off: and we
give express charge, that in our marches through the
country, there be nothing compelled from the
villages, nothing taken but paid for, none of the
French upbraided or abused in disdainful language;
for when lenity and cruelty play for a kingdom, the
gentler gamester is the soonest winner.

Finally, in one of the final battle scenes, the French kill the boys accompanying British forces in camp, provoking overt reference to war crimes---and reprisals against French prisoners. On discovery of the French act, Fluellen---one of Henry's warriors---exclaims:

Kill the poys and the luggage! 'tis expressly
against the law of arms: 'tis as arrant a piece of
knavery, mark you now, as can be offer't; in your
conscience, now, is it not?

His companion, Gowers, describes the king's response:

'Tis certain there's not a boy left alive; and the
cowardly rascals that ran from the battle ha' done
this slaughter: besides, they have burned and
carried away all that was in the king's tent;
wherefore the king, most worthily, hath caused every
soldier to cut his prisoner's throat. O, 'tis a
gallant king!

Henry's own response to the incident is the following:

I was not angry since I came to France
Until this instant. Take a trumpet, herald;
Ride thou unto the horsemen on yon hill:
If they will fight with us, bid them come down,
Or void the field; they do offend our sight:
If they'll do neither, we will come to them,
And make them skirr away, as swift as stones
Enforced from the old Assyrian slings:
Besides, we'll cut the throats of those we have,
And not a man of them that we shall take
Shall taste our mercy. Go and tell them so.

All of this demonstrates that the law of armed conflict was sufficiently developed by Shakespeare's time that it was showing up in popular drama---in other words, that it was relatively accessible to the general public. But this raises an interesting question: I know of no other plays, poems or dramas from this period or earlier---at least not offhand---that show a comparably developed LOAC. To be sure, there's a LOAC of sorts in Homer, but it's a LOAC with no relation to our own. The LOAC of Henry V, by contrast, shows many of the same concerns as does modern LOAC: civilian protection, concern for lawfulness in resorts to force, and treatment of non-combatant children and forces accompanying soldiers.

I'd be fascinated to learn of other early literary discussions of the laws of war. Is Henry V anomalous, or are there other works that show similar concerns from that period and earlier?