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Agincourt: Prisoners of War, Reprisals, and Necessity

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In the following essay, Meron considers Shakespeare's portrayal of Henry V's order to kill the French prisoners (in Act IV, scene vii) in light of medieval rules and customs of war. The critic concludes that Shakespeare depicted the order as both legal and justified.
SOURCE: Meron, Theodor. “Agincourt: Prisoners of War, Reprisals, and Necessity.” In Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages, pp. 154-71. Oxford: Clarendon Press, 1993.

The events at Agincourt are comprehensible only if we consider how outnumbered the English forces were and how great their fear must have been. The tension which was felt in the English camp is palpable in the complaint attributed by Shakespeare to Warwick (in the Oxford edition by Wells and Taylor which I am using), or to Westmoreland (in other editions; Westmoreland was not on the Agincourt campaign at all), and in Henry's heroic reply:

[WARWICK]
                                                  O that we now had here
But one ten thousand of those men in England
That do no work today.
KING
                    What's he that wishes so?
My cousin Warwick? No, my fair cousin.
If we are marked to die, we are enough
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God's will, I pray thee wish not one man more.
By Jove, I am not covetous for gold,
Nor care I who doth feed upon my cost;
It ernes me not if men my garments wear;
Such outward things dwell not in my desires.
But if it be a sin to covet honour
I am the most offending soul alive.
No, faith, my coz, wish not a man from England.
God's peace, I would not lose so great an honour
As one man more methinks would share from me
For the best hope I have. O do not wish one more.
Rather proclaim it presently through my host
That he which hath no stomach to this fight,
Let him depart.

(Henry V, IV. iii. 17-36)

Shakespeare drew heavily on Holinshed here (who attributed Warwick's statement to an unnamed ‘one of the host’). The exchange itself is also reported in other sources, including the Gesta.1

As the Battle of Agincourt wore on, the outnumbered English appeared to have the upper hand. The fear that another French charge was about to begin, the presence on the battlefield of a large number of French prisoners who, though disarmed, could have risen against their English captors, and a French attack on the English baggage train possibly involving loss of life among the attendants—all combined to trigger an unexpected order by the King. Shakespeare's Henry, hearing a sudden call to arms, cries out:

But hark, what new alarum is this same?
The French have reinforced their scattered men.
Then every soldier kill his prisoners.
Give the word through.

(IV. vi. 35-8)

The play reveals another reason for this order in the next scene:

FLUELLEN
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 offert. In your conscience now, is it not?
GOWER
'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.

(IV. vii. 1-10)

After this disclosure, the King elaborates on his order regarding the prisoners:

KING
                    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
Enforcèd 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.

(ibid., 53-63)

Shakespeare thus explains Henry's cruel order to kill the French prisoners on two grounds: necessity, as the French appeared to be regrouping to attack; and reprisal for the unlawful attack on the servants2 guarding the rear camp and for its plunder. In an effort to highlight Henry's humanity, Shakespeare focuses on the King's impetuous anger (‘I was not angry since I came to France until this instant’). Bullough agrees that Shakespeare emphasizes and even explains Henry's command as an act of ‘justifiable anger, needing no apology’, characteristic of his impetuosity; Bullough adds, however, that ‘Shakespeare's ambivalence is … suggested by Fluellen's disquisition.’3 Holinshed offers a different version of the facts:

[C]erteine Frenchmen on horssebacke … to the number of six hundred horssemen, which were the first that fled, hearing that the English tents and pavillions were a good waie distant from the armie, without anie sufficient gard to defend the same … entred upon the kings campe, and there spoiled the hails, robbed the tents, brake up chests, and carried awaie caskets, and slue such servants as they found to make anie resistance. …


But when the outcrie of the lackies and boies, which ran awaie for feare of the Frenchmen thus spoiling the campe, came to the kings eares, he doubting least his enimies should gather togither againe, and begin a new field; and mistrusting further that the prisoners would be an aid to his enimies … contrarie to his accustomed gentlenes, commanded by sound of trumpet, that everie man (upon paine of death) should incontinentlie slaie his prisoner.4

Thus the chronicler whom Shakespeare most closely followed recorded that the French killed only those servants who offered resistance.5 Holinshed's version of the story formed a part of the mythology of Agincourt by his time. Shakespeare modified the story, apparently to cast Henry's order in the best possible light.

Although Holinshed telescoped the attack on the luggage train with the King's fear that the French forces were regrouping,6 Shakespeare mentions the regrouping of the French troops together with the King's order to kill the prisoners. In the immediately following scene, the exchange between Fluellen and Gower rather sarcastically presents the killing of the ‘poys and luggage’ as triggering the King's retaliatory order.7 However, the eyewitness account of the author of the Gesta Henrici Quinti describes the attack on the English baggage as preceding the principal engagement and thus occurring before the English had taken many prisoners. As Henry was preparing for battle, he ordered the baggage brought to the rear of his forces, where it would not fall into the hands of the enemy as booty:

And at that time French pillagers were watching it [the baggage train] from almost every side, intending to make an attack upon it immediately they saw both armies engage; in fact, directly battle was joined they fell upon the tail end of it where, owing to the negligence of the royal servants, the king's own baggage was, seizing on royal treasure of great value.8

A large number of local peasants participated in this attack.9 The Gesta account made no mention of loss of life among the English guarding the baggage and did not link the attack on the baggage train with the killing of the prisoners, which took place near the end of the battle in these wholly unrelated circumstances:

But then, all at once, because of what wrathfulness on God's part no one knows, a shout went up that the enemy's mounted rearguard (in incomparable number and still fresh) were re-establishing their position and line of battle in order to launch an attack on us, few and weary as we were.10

The Gesta portrays the killing itself as wholly spontaneous, without the slightest mention of the King's orders: ‘[a]nd immediately … the prisoners … were killed by the swords either of their captors or of others following after, lest they should involve us in utter disaster in the fighting that would ensue.’11

In the circumstances described in the Gesta, there would, of course, be little cause for the historical Henry's anger, unless we assume that it was triggered by the losses of royal treasure. Prior to the deliberate killing of the prisoners, the battle was already cruel and bloody. The Gesta, a source generous to the English, speaks of the butchery of the French.12 It recalls that there was no time to take prisoners and ‘almost all … were, as soon as they were struck down, put to death without respite, either by those who had laid them low or by others following after.’13 This butchery, which continued until the English were sure of their victory, is vividly described by The First English Life of King Henry the Fifth:

no man approached the place of the battell, but either he must slay or else he was slayne … no man was taken prisoner, but an innumerable were slayne. … And when it came to the middle of the fielde, the Englishmen were more encouraged to slaye there enemies then tofore … there approached no man [of the French] to bataile, but only to death: of whom, after that an innumerable companie were slayne, and that the victorie surelie remayned to the Englishmen, they spared to slaye and tooke prisoners of the Frenchmen.14

Modern accounts by both Wylie15 and Winston Churchill16 speak of plunder but not killing. John Keegan refers to plunder by a body of armed peasants who were led by three mounted knights; they stole some objects and ‘inflicted some loss of life’.17 The anonymous early sixteenth-century biographer of Henry V explained that the King's order to kill the prisoners was triggered by his fear that he would have to fight them as well as the attacking French forces. This author did not even mention the assault on the baggage train.18

If Holinshed's version is correct, the French raid is unlikely to have violated any laws of war. The English rear camp constituted a lawful object of attack. In the absence of resistance, the immunity of persons serving the troops would have depended on whether they met the prevailing standards of innocence.19 Assuming that the pages were not entitled to the immunity of children20 and were to be treated as ‘youths’, their right to be spared would have turned on their surrender, either on ‘fair terms’ or unconditionally.21 At least some medieval jurists regarded non-combatant servants of an army as a legitimate military target, even when they were not involved in any defensive or other fighting, and even when they were not armed. Thus the authoritative Giovanni da Legnano writes: ‘Should those who attend in a war, but who cannot fight, enjoy the immunities [status] of combatants? Say that they should, provided that they are useful in counsel in other ways.’22

Perhaps Shakespeare himself was not quite persuaded that Fluellen's version of the law sufficiently justified the order to kill the prisoners. The sarcasm in Gower's response appears to be aimed both at the Welshman Fluellen and at the King. Indeed, the real Henry may later have been embarrassed by the order. In his eyewitness account of the Agincourt campaign, the anonymous English cleric attached to Henry's court clearly intended to justify Henry's foreign policy and to present him as a devout and humane Christian prince who was seeking peace with justice. Yet, in describing the killing of the prisoners (‘by the swords either of their captors or of others following after, lest they should involve us in utter disaster in the fighting that would ensue’), he never mentioned the provocation of the French attack on the luggage train or even the existence of Henry's command.23

Although some of the French participants in the attack were subsequently punished by France for committing ‘treason’ and leaving their camp for private plunder,24 those punitive measures were motivated not by the violation of the laws of war, but by the ‘causing [of] the rumour [of a French counter-attack] which led to the hideous massacre of the prisoners on the battlefield’.25 Under the circumstances, Fluellen's invocation of the law of arms may have reflected Shakespeare's desire to place the most favourable interpretation on the King's order. Legally, however, it was flawed.

Without a manifest breach of the law by the French, Henry could not claim the defence of reprisal, which was then generally permissible26 and, according to some views, was even allowed against innocent private persons.27 Indeed, it did not occur to Gentili, in his discussion of Agincourt (see below), that reprisals might be relevant. The usually humane Gentili, while pleading for compassion ‘towards those who really suffer [retaliation] for the faults of others’,28 none the less accepted the principle of collective responsibility as manifested by reprisals, as a matter of law:

[I]t avails not in this case to say that those who were punished were not the ones who acted cruelly, and that hence they ought not to have been treated cruelly; for the enemy make up one body, just as an army is a single body. … [T]he individuals are responsible, even if a fault was committed by all in common.29

Writing soon after Gentili, Grotius challenged the legality of reprisals against prisoners, except in those cases of individual responsibility for a previously committed crime that ‘a just judge would hold punishable by death’.30 Grotius argued that collective responsibility was a fiction and should not be invoked to justify reprisals against innocent persons: ‘nature does not sanction retaliation except against those who have done wrong. It is not sufficient that by a sort of fiction the enemy may be conceived as forming a single body.’31

If the massacre of the French prisoners, whose horror was vividly described by Holinshed,32 was not excusable as a reprisal, could it have been justified on grounds of necessity? Alluding to the necessities of war, the eminent medieval jurist Giovanni da Legnano recognized the captor's right to kill prisoners where there was ‘fear of a disturbance of the peace’.33 Holinshed's account suggests that the King's fear of an impending attack, in which the French prisoners would join, was real.34 The heavily outnumbered English would have had difficulty repelling another attack while guarding their numerous prisoners. In the same vein, Wylie, on the basis of the chroniclers, writes that the danger of a new assault triggered the King's order. But this explanation is undercut by the fact that the King made an exception for dukes, earls, and other high-placed leaders ‘as fell [insofar as ransom was concerned] to the king's own share’.35 Mindful of their expected ransoms, the captors were reluctant to carry out the order, ‘but the king threatened to hang any man that disobeyed and told off 200 of his ever-handy archers to begin the bloody work.’36

In other wars as well, orders to execute captives clashed with the desire of captors to obtain ransom. The war of Burgundy against Ghent (1451-3) was regarded as a war against rebels, and therefore as a guerre mortelle in which rules of chivalry were not applicable and quarter was not given. In that war, the Duke of Burgundy (Philip the Good) categorically ordered the execution of all prisoners. Malcolm Vale explained these ducal commands as ‘suggest[ing] an unwillingness among some nobles to be deprived of potentially valuable captives’.37

Although the rank and the wealth of those members of the highest French nobility who were spared by the real Henry may have influenced his decision to exclude them from the mass of the prisoners to be killed, his primary motivation was probably the desire to secure generous ransoms for himself, rather than to accord them the privilege of rank. That great wealth and therefore the concomitant ability to pay lavish ransoms served as the criterion for separating the few that were to live from the many that were to die is morally unacceptable. Already Gentili complained that instead of punishing leaders who led their people to an unjust war, in

modern warfare … it is the common soldiers who are slain. The leaders, the rich, are saved, that they may ransom themselves. O unjust form of waging war and cruel traffic! … But our worthy leaders consult for their own interests in this new fashion; for if they should come into the hands of the enemy, they would no longer have to fear for their own lives, now that the lavish shedding of the blood of the common soldiers has become customary.38

Ransoms were usually huge. Grose reported that:

The usual price demanded for the ransome of a prisoner of war was … one year's rent of his estate, one third of which was by the royal ordonances, the property of the chief captain under whom the captor served; out of which, one third of that third, equal to one ninth of the whole ransome, was to be paid by the captain to the king; stipendiary soldiers who had no estates, usually paid for their ransome one half of their year's pay.39

The collection of ransom was, therefore, of tremendous economic significance to the captor. Ransom and plunder were the medieval warrior's principal incentives for going to war. Ransom could also, and often did, bring economic ruin to the captive and his family.

Without the promise and the expectation of ransom, the rules of chivalry could not ensure the lives of prisoners. Francis Grose cynically observed that ‘[t]he hopes of ransom frequently acted in the place of humanity, avarice assuming the place of mercy.’40 He thus explained the great slaughter of the Scots at the battle of Musselborough (1548): ‘that their mean appearance gave little hopes [sic] of their ability to pay ransom’.41

Ransom could at least spare the lives of those able to pay it. Vale wrote that ‘the incentive for the common soldier to conceal booty and to kill (rather than take prisoners) grew as the prospect of lucrative plunder diminished.’42 Wars fought in the second part of the fifteenth century, when ransom ceased to be customarily granted, became even bloodier. The Swiss and German mercenaries did not take prisoners, because prisoners would make the search for booty more difficult. Moreover, in wars fought by larger groups kept apart by gunfire, the pursuit and the taking of prisoners became rare.43 Vale notes, for example, that a Swiss battle order of 18 March 1476 required that all Burgundians and their allies be killed, and that, accordingly, no prisoners were taken at the Battle of Morat.44 In the short term, at least, the decline of ransom resulted in more brutal wars.

Although ransom served as an incentive for sparing lives, it also had negative effects. It could trigger the taking as prisoners persons who would otherwise have been left in peace, and even of persons protected by the laws of war. For example, Henry's Ordinances of War prohibited the capture as prisoners of unarmed women and of unarmed men of the cloth, as well as of children under the age of 14, with the exception of the sons of lords or other persons of status. Captors of the sons of such wealthy persons were to deliver their prisoners to their superiors and eventually shared the ransom.

Chivalric rules were more protective of children. Invoking the principle of innocence, Christine de Pisan movingly though vainly argued against the taking as prisoners of little children, whether poor or rich:

I telle the certeynly that after right the litel child may nor ought not to be kept prysoner, for reason wil not accorde, that innocencye be a greued for it is veray trouthe that a childe in suche a cas is innocent & not coulpable of all werre in al manere of thingis, wherfore he ought not to bere the peyne of that wherof he is not in fawte nor of counseill nor of goodes he hathe nought holpen therto for he hathe as yet noon Ye maister, but supposed that the said child were ryche of hym self as of his fader & moders godes that be dede, mooste he paye, For it might be soo that his tutoures or they that haue the rule ouer his goodis shulde paye a subsydye of hys goodes to the kynge of Englande for to maynten his werre in Fraunce, Yet y telle the that nay, for what that his tutoures paied therof it were not of the childes wille whiche is not yet in age of discrecion, without faille maister thenne is not this daye this law wel kepte, thou saist to me trouthe fayre loue, nor yet be nomore kept nother the noble ryghtes of olde tyme that helde and truly dyde kepe the noble conquerours, Thus abusen with the right of armes they that now doo excersice them by the grete coueytyse that ouercometh them, soo ought to tourne them to a grete shame for to emprisone wymen or children & impotent & olde.45

Christine was following in the footsteps of Bouvet here, who had argued that children—being innocent of the war and unable to assist in its conduct—should not be made prisoners. He maintained that it was wrong to imprison old men who took no part in the war, as well as women and children ‘for the former lack strength, the others knowledge’.46 Emphasizing the obligations of chivalry, Bouvet insisted that ‘all gentlemen should keep them from harm, and all knights and men-at-arms are bound to do so, and whoever does the contrary deserves the name of pillager.’47

Churchill, defending Henry, claims that the King ordered the killing of the prisoners in the belief that he was being attacked from the rear; although ‘[t]he alarm in the rear was soon relieved,’ by then the massacre was almost over.48 Less categorically, Keegan writes that the order to kill the prisoners was prompted by either the attack on the rear camp or the continued menace of the French.49

However genuine the King's fear of an attack on his outnumbered troops may have been, the order to kill the French prisoners, already hors de combat, could hardly be justified on the ground that they might have joined the ranks of the attackers. The captured French were still encumbered by their heavy armour, as their basinets (helmets) alone had been removed.50 Dismounted, defenceless, and barely able to move, they were hardly a menace to the English troops. In the face of real necessity, a threat of execution would not have been required to enforce Henry's order. Burne argued, however, that because many prisoners had not yet been divested of their weapons, ‘if [the archers] let go of their captives and moved off to repel the impending attack their captives would have been free to pick up weapons that sprinkled the ground and attack them in the rear, possibly in conjunction with their comrades who were still running amok in the English camp.’51 This justification of the killings on grounds of necessity is unpersuasive.

Did the order violate the applicable laws of war? While maintaining that, ‘speaking absolutely, there is nothing to prevent the killing of those who have surrendered or been captured in a just war so long as abstract equity is observed,’52 Vitoria suggested that this harsh rule had been tempered by the law of nations and the customs of war; consequently, ‘after victory has been won … and all danger is over, [they] are not to be killed.’53 Because Henry believed that the victory had not been won and that the danger persisted, he would not have violated Vitoria's standards, and certainly not the earlier medieval norms described by Giovanni da Legnano. Even Crompton, Shakespeare's contemporary, and ‘an apprentice of the common law’, in a book published in the same year Shakespeare wrote his play, fully justified Henry's order to kill the prisoners:

the French as they are men of great courage and valour, so they assembled themselves againe in battell array, meaning to have giuen a new battell to king Henry, which king Henry perceiving, gave speciall commandment by proclamation, that every man should kill his prisoners: whereupon many were presently slaine, whereof the French king having intelligence, dispersed his army, and so departed: whereby you may see the miseries of warre, that though they [the prisoners] had yeelded and thought themselves sure of their lives, paying their ransome, according to the lawes of armes, yet uppon such necessary occasion, to kill them was a thing by all reason allowed, for otherwise the king having lost diverse valiant Captaines and souldiers in this battell, and being also but a small number in comparison of the French kings army, and in a strang countrey, where he could not supply his neede upon the sudden, it might have bene much daungerous to have againe joyned with the enemy, and kept his prisoners alive, as in our Chronicles largely appeareth.54

But such medieval writers as Bouvet and Christine de Pisan argued that the killing of prisoners should be prohibited, though with some exceptions.55 They advocated even more protective rules for prisoners subjected to inhumane treatment. A knight who escapes although he had given his word to remain in captivity offends God and man. This is

on the assumption, however, that his master does not use any extradordinary harshness towards him; for if he were kept in such close imprisonment that he was in danger of falling into languor, or mortal sickness, or any grievous ill of body, and for that reason took his opportunity to escape, he would commit no offence. … And if his master were so cruel as to be in the habit of killing or causing the death of his prisoners in his prisons, and if, on opportunity arising, he quitted such a host, I would blame him not at all.56

The right to escape in breach of a knight's promise applied not only in cases where the captor preferred to have his prisoners killed in prison, rather than to have them put to ransom, but also if the captor refused to accept a reasonable ransom and insisted on ‘ransom beyond [the prisoner's] condition’.57 Christine de Pisan argued that not only was the killing of prisoners prohibited, but there existed an obligation to accord them humane treatment. Although the law of arms proscribed the escape of a prisoner who gave his word to remain in captivity, that promise was contingent on his being humanely treated. It ceased to be binding if his treatment by his captors endangered his life or health:

That is to wyte that the sayde mayster doo not to hym noon other evyl nor hurt than to put hym in a couenable pryson, as ryght hath lymyted & wil,


But I accorde wyth the wel, yf he were kept soo straytly and soo euyll delt wyth all that hys lyff or helthe were putte in Jeopardye therby, and that Inhumayne or cruelle a thyng it were, I afferme unto the that yf he can fyn-de meanes for to escape awaye that a ryght grete wyt it were, nor for noo trespas it ought not to be taken.58

Rules such as those promoted by Bouvet and Christine de Pisan were in fact enforced by courts applying rules of chivalry. The case of an English knight, Simon Burley (see above Chapter 2), is illustrative.59 In a decision rendered in 1371, the Parlement de Paris decided that an escaped prisoner must return to the captor's custody, but only because his claim of ill-treatment had not been proven.60

I shall now return to the question of grant of quarter. Gentili's humane position on the duty to give quarter has already been discussed. Faithful to the chivalric code of conduct,61 Gentili suggested that an implied contract is formed between the captor and the captive, ‘a bargain with the enemy for his life’. The ‘rights of humanity and the laws of war … order the sparing of those who surrender.’62 Gentili did not agree that danger justified the killing of captives and he praised those who ‘did not slay their captives, no matter how great danger threatened them’.63 He had harsh words for Henry:

I cannot praise the English who, in that famous battle in which they overthrew the power of France, having taken more prisoners than the number of their victorious army and fearing danger from them by night, set aside those of high rank and slew the rest. ‘A hateful and inhuman deed,’ says the historian, ‘and the battle was not so bloody as the victory.’64

Perhaps Gentili's stricture on Henry's action, had it been known to Shakespeare, would explain the playwright's sensitivity and his desire to depart from Holinshed's account. But Shakespeare's apparently deliberate departure from Holinshed can plausibly be explained, without reference to Gentili, as an attempt to put Henry's order in the best possible light.

Notwithstanding Gentili's condemnation, it cannot be concluded that Henry clearly violated contemporary standards. Wylie reports that, even though the writers of the time regarded the massacre as an inhumane deed, his French critics refrained from blaming Henry because ‘in those days the French would have done the same themselves had they been in so perilous a case.’65 Killing prisoners in an emergency was not unprecedented66 and, while quarter was normally granted in Anglo-French wars, the virtual absence of ‘contemporary criticism’ of Henry's action67 suggests that, cruel though it was, his order did not violate the accepted norms of behaviour. It is difficult to characterize the order as an act of wanton brutality, given the importance of the expectations of ransom to the English soldiery as a whole.

It is, however, impossible to excuse the King's threat, made when his victory had already been assured, after the massacre of the French prisoners, not to give quarter and to kill the remaining prisoners, if the French continued to fight:

KING
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
Enforcèd 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.

(Henry V, IV. vii. 54-63)

Shakespeare appears to follow Holinshed:

the king perceiving his enimies in one part to assemble togither, as though they meant to give a new battell for preservation of the prisoners, sent to them an herald, commanding them either to depart out of his sight, or else to come forward at once, and give battell: promising herewith, that if they did offer to fight againe, not onelie those prisoners which this people alreadie had taken; but also so manie of them as in this new conflict, which they thus attempted should fall into his hands, should die the death without redemption.68

Holinshed based his account on Titus Livius, whose influence is also apparent in the account which appears in The First English Life of King Henry the Fifth by the anonymous author known as Translator of Livius: ‘if they come to battaile, both those of theires that then were prisoners, and also all they that should after be taken, without mercie or redemption shoulde be put to death.’69

Henry's threat to refuse quarter and to kill the prisoners still in his hands, should the French continue fighting, as they could lawfully do, was most likely in violation of the contemporary laws of war. It was, nevertheless, passed over in silence by most commentators, probably because the French took the threat seriously and further killing was avoided.

Agincourt was not the only setting, during the reign of Henry V, in which privileged categories of combatants were killed. In January 1420, for example, English forces slaughtered a large number of Armagnacs who were retreating under safe conduct.70 That same month, a Castilian fleet defeated an English naval force before La Rochelle, taking many prisoners, ‘some of whom were landed at the town and slaughtered by the Bastard of Alençon’.71 In these and other cases, the protective rules were clear, but the practice, sadly, was different.

In modern law the killing of prisoners of war constitutes, of course, a ‘grave breach’ of the third Geneva Convention,72 and the killing of civilians a grave breach of the fourth Geneva Convention.73 Such acts can no longer be excused by either reprisal or necessity, and were condemned as war crimes violating the Hague Regulations,74 the 1929 Geneva POW Convention75 and international customary law by the Nuernberg tribunals, which in many cases imposed capital punishment on the perpetrators. Sadly, even now the killing of protected persons is not exceptional.

Notes

  1. Holinshed thus describes the King's answer:

    ‘I would not wish a man more here than I have, we are indeed in comparison to the enimies but a few, but, if God of his clemencie doo favour us, and our just cause (as I trust he will) we shall speed well inough … And if so be that … wee shall be delivered into the hands of our enimies, the lesse number we be, the lesse damage shall the realme of England susteine.’ Holinshed, 35 (= R. Holinshed, Chronicles (1808), iii. 79-80.). Gesta, 79 attributes Warwick's comment to Sir Walter Hungerford.

  2. Lackeys, boys, pages, sutlers, waggoners, and servants of the camp. James Hamilton Wylie, The Reign of Henry the Fifth (1919), ii. 148 n. 6.

  3. Geoffrey Bullough (ed.), Narrative and Dramatic Sources of Shakespeare (1962), iv. 367.

  4. Holinshed, 38 (= R. Holinshed, Chronicles (1808), iii. 81).

  5. But E. Hall stated that the French killed the servants they could find. Hall, 69. Cf. Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, Art. 13, 18 Oct. 1907, 36 Stat. 2277, TS No. 539, 1 Bevans 631. [Geneva] Convention Relative to the Treatment of Prisoners of War, Art. 81, 27 July 1929, 47 Stat. 2021 (pt. 2) TS No. 846, 2 Bevans 932; [Geneva] Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Art. 4 (A)(4), 12 Aug. 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135. Under such provisions, service personnel accompanying the armed forces, without actually being members thereof, would be entitled to POW status but, as non-combatants, would not be a lawful object of attack unless they took a direct part in the hostilities. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 51 (3), opened for signature 12 Dec. 1977, 1125 UNTS 3.

  6. Holinshed, 38 (= R. Holinshed, Chronicles (1808), iii. 81).

  7. Cf. Bullough, supra note 3, at 366-7.

  8. Gesta, 85.

  9. Gesta, 84 n. 1.

  10. Ibid. 91 (footnote omitted).

  11. Ibid. 92-3 (footnote omitted).

  12. Ibid. 91.

  13. Ibid.

  14. Charles Lethbridge Kingsford (ed.), The First English Life of King Henry the Fifth (1911), 59-60.

  15. Wylie, supra note 2, at ii. 171. In his discussion of the attack on the King's baggage, Hibbert does not mention any loss of life. Charles Hibbert, Agincourt (1964), 127.

  16. Winston S. Churchill, A History of the English-Speaking Peoples (1956), i. 319. See also J. D. Griffith Davies, Henry V, (1935), 190.

  17. John Keegan, The Face of Battle (1978), 84.

  18. First English Life, supra note 14, at 60-1. Harris Nicolas, A History of the Battle of Agincourt (2nd edn. 1832), 124, writes that King Henry was advised that the French had attacked his rear and plundered his baggage, but he does not mention any loss of life among the baggage attendants. Many other historians also mention the attack on the baggage train, but not loss of life among the attendants. See E. F. Jacob, Henry V and the Invasion of France (1947), 105; George Makepeace Towle, The History of Henry the Fifth (1866), 340; Desmond Seward, Henry V (1988), 80; R. B. Mowat, Henry V (1920), 159. Allmand offers this rather lenient explanation for the King's order to kill the prisoners: it ‘was an attempt to frighten them into submission, and to cause them to allow themselves to be herded off the field by the archers … If many were killed in the process, this was no deliberate wholesale massacre. It was, moreover, a “massacre” which was brought to an end immediately it was recognized that the threat from the French men-at-arms was not going to materialize.’ Christopher Allmand, Henry V at 95 (1992).

  19. Vitoria, 180 (38)-(39).

  20. See Grotius, bk. III, ch. xi, pt. ix.

  21. See Grotius, bk. III, ch. xi, pts. xiii(2), xiv, xv; see also Gentili, ii. 216.

  22. Legnano, ch. 71, p. 274.

  23. Gesta, 93. See also Intro. by the Editors, ibid., pp. xviii, xxiii, xxviii.

  24. Holinshed, 38 (= R. Holinshed, Chronicles (1808), iii. 81).

  25. Wylie, supra note 2, at ii. 171 (footnotes omitted); see also Holinshed, 38 (= R. Holinshed, Chronicles (1808), iii. 81).

  26. See the discussion of the breadth of permissible reprisals by Giovanni da Legnano, chs. 124-65, pp. 308-30. Reprisals against prisoners of war are now outlawed. See e.g. Geneva Convention No. III, supra note 5, Art. 13.

  27. A rule protecting innocent private persons against reprisals was justified by Jacobus de Belvisio on the basis of the principle of individual responsibility: ‘a man ought not to be punished for another's offence.’ Cited by Giovanni da Legnano, ch. 143, p. 321, who disagrees.

  28. Gentili, ii. 232.

  29. Ibid. Cf. Genesis 18: 23-6:

    ‘And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked? Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein? That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.’

  30. Grotius, bk. III, ch. xi, pt. xvi(1).

  31. Ibid., pt. xvi (2). ‘[R]etaliation that is lawful … must be inflicted upon the very person who has done wrong’, ibid., ch. iv, pt. xiii (1).

  32. Holinshed, 38-9 (= R. Holinshed, Chronicles (1808), iii. 81-2).

  33. Legnano, ch. 69, p. 274. Many historians believe that necessity justified Henry's order to kill the prisoners. Thus, Harold F. Hutchison, King Henry V (1967), 124, observes that ‘[b]y medieval standards Henry was obeying his soldier creed—military necessity justified any butchery.’ See also Towle, supra note 18, at 339-40. Seward, supra note 18, at 81, strongly dissents: ‘In reality, by fifteenth-century standards, to massacre captive, unarmed noblemen who, according to the universally recognized international laws of chivalry, had every reason to expect to be ransomed if they surrendered formally, was a peculiarly nasty crime.’

  34. Supra text at note 4. Nicolas, supra note 18, at 124, believes that ‘[i]mperative necessity’ dictated the King's order.

  35. Wylie, supra note 2, at ii. 171. Hutchison, who supports the traditional justification of necessity, argues that the fact that Henry's own rich prisoners were exempted from being killed tallied with Henry's reputation for ‘shrewd common sense—he simply could not afford to miss the chance of spectacular ransoms.’ Hutchison, supra note 33, at 124.

  36. Wylie, supra note 2, at ii. 171-2. The archers, not being knights, may have had fewer scruples about killing members of the French nobility. Grose, i. 345, cynically observed that ‘[t]he hopes of ransom frequently acted in the place of humanity, avarice assuming the place of mercy.’ Could archers enforce agreements to pay ransom? Although under the law of chivalry, which applied only to a particular class of persons, peasants could not enforce such agreements (LW 19), this was not necessarily true of archers. Many persons who were not knights but thought they were or aspired to be ‘noble’ (in the French sense) invoked ‘knightly’ or ‘chivalrous honour’. In 15th-c. England swearing on ‘my honour as a gentleman’ (as opposed to knight) was beginning to come in. Esquires and gentlemen certainly promised on their honour to pay ransom, and took prisoners, and held them to ransom. In Henry V's time, even an archer might be a gentleman. Ransoms were certainly promised upon ‘honour’; and captors—not only knights—were expected to behave ‘honourably’ to their prisoners (and vice versa). I am grateful to Dr Keen for his suggestions on this point.

  37. Malcolm G. A. Vale, War and Chivalry (1981), 160.

  38. Gentili, ii. 325.

  39. Grose, i. 344.

  40. Grose, i. 345 and n. i.

  41. Ibid.

  42. Vale, supra note 37, at 156.

  43. Ibid.

  44. Ibid.

  45. Pisan, 232-3.

  46. Bouvet, 185.

  47. Ibid.

  48. Churchill, supra note 16, at i. 319-20.

  49. Keegan, supra note 17, at 84.

  50. Wylie, supra note 2, at ii. 171.

  51. Alfred H. Burne, The Agincourt War (1956), 86. The editors of Gesta agree with Burne: ‘The tendency among historians who have condemned Henry's slaughter of the prisoners … has been to forget that the English were not out of danger after their victory over the French vanguard; they must have been exhausted, and the captives in their ranks were very numerous. The arrival of enemy reinforcements was quite probable, as Anthony of Brabant's appearance had shown. Henry clearly thought that he must fight again … and had to make a quick decision to enable his men to face the danger with least disadvantage to themselves.’ Gesta, 92-3 n. 1.

  52. Vitoria, 183 (49).

  53. Ibid.

  54. Richard Crompton, The Mansion of Magnamitie (1599; unpaginated), ch. 6 in fine.

  55. Bouvet, 134 argued that ‘he who in battle has captured his enemy, especially if it be the duke or marshal of the battle … should have mercy on him, unless by his deliverance there is danger of having greater wars.’ Elsewhere, Bouvet explains that ‘to kill an enemy in battle is allowed by law and by the lord, but out of battle no man may kill another save in self-defence, except the lord, after trial.’ Ibid. 152. Pisan, 222, would prohibit the killing of prisoners even in battle: ‘Soo saye I to the well that it is ayenst all ryght and gentylnesse to slee hym that yeldeth hym.’ Arguing against ‘a thynge Inhumayne and to grete a cruelness’ and answering critics who invoked the ancient right of the captor to kill his prisoners, sell them, or otherwise dispose of them, she asserted that ‘amonge crysten folke where the lawe is altogyder grounded vpon myldefulnes and pyte [it] is not lycyte nor accordynge to vse of suche terannye whyche be acursed and reproued.’ Ibid. Nevertheless, after the battle, she would allow the prince to kill a prisoner who would be dangerous to the prince if allowed to go free. Ibid.

  56. Bouvet, 159.

  57. Bouvet, 159.

  58. Pisan, 237.

  59. Pierre-Clement Timbal, La Guerre de cent ans vue à travers les registres du Parlement (1337-1369) (1969), 328.

  60. Ibid. 329.

  61. See supra Ch. 6, text at notes 157, 144-6, 174-5.

  62. Gentili, ii. 216. Cf. Grotius, bk. III, ch. iv, pt. x (2) (‘So far as the law of nations is concerned, the right of killing such slaves, that is, captives taken in war, is not precluded at any time, although it is restricted, now more, now less, by the laws of states.’) Elsewhere, however, Grotius advocated sparing captives who have surrendered unconditionally. Ibid., ch. xi, pt. xv.

  63. Gentili, ii. 211-12.

  64. Ibid.

  65. Wylie, supra note 2, at ii. 175. Hibbert, supra note 15, at 129, observes: ‘Even the French chroniclers write of [Henry's] action as though it were dictated by painful necessity.’

  66. Maurice H. Keen, Chivalry (1984), 276 n. 7.

  67. Ibid. 221. Note the matter-of-fact, non-judgmental reference to the massacre by the French chronicler the Religieux de Saint-Denys: ‘Le roi d'Angleterre, croyant qu'ils [the French] voulaient revenir à la charge, ordonna qu'on tuât tous les prisonniers.’ Chronique du Religieux de Saint-Denys, trans. and ed. L. Bellaguet, Collection de documents inédits sur l'histoire de la France, ser. 1. (1844), v. 565.

  68. Holinshed, 39 (= R. Holinshed, Chronicles (1808), iii, 82).

  69. First English Life, supra note 14, at 61.

  70. James Hamilton Wylie and William Templeton Waugh, The Reign of Henry the Fifth (1929), iii. 196.

  71. Ibid. 197.

  72. Supra note 5, at Art. 130.

  73. Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), 12 Aug. 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287 at Art. 147.

  74. Supra note 5, at Art.. 4

  75. (Geneva) Convention Relative to the Treatment of Prisoners of War, opened for signature 27 July 1929, 47 Stat. 2021, TS No. 846, at Art. 2.

Abbreviations

Ayala: Balthazar Ayala, Three Books on the Law of War and on the Duties Connected with War and on Military Discipline, Carnegie edn., trans. John Pawley Bate (1582) (vol. ii) (1912).

Bouvet: Honoré Bonet [otherwise known as Bouvet], The Tree of Battles, ed. G. W. Coopland (1949). Coopland's edn. is a translation of the Ernest Nys edn. of 1883. See further Ch. 2 n. 5 and Ch. 5 n. 3.

CW: William Shakespeare, The Complete Works, ed. Stanley Wells and Gary Taylor (Compact edn., 1988). See further Ch. 1 n. 2.

Gentili: Alberico Gentili, De jure belli libri tres, Carnegie edn., trans. John C. Rolfe (1933). See further Ch. 2 n. 17 and Ch. 3 n. 80.

Gesta: Gesta Henrici Quinti, ed. Frank Taylor and John S. Roskell (1975).

Grose: Francis Grose, Military Antiquities (vol. i, 1786; vol. ii, 1788).

Grotius: Hugo Grotius, De jure belli ac pacis libri tres, Carnegie edn., trans. Francis Kelsey from 1646 edn. (1925). See further Ch. 2 n. 19.

Hall: Edward Hall, Hall's Chronicle: Containing the History of England, during the Reign of Henry the Fourth, and the Succeeding Monarchs, to the End of the Reign of Henry the Eighth (1809; repr. 1965). Original title (1548): The Union of the Two Noble and Illustre Famelies of Lancastre & Yorke. See further Ch. 1 n. 7.

Holinshed: Raphael Holinshed, Holinshed's Chronicles, ed. R. S. Wallace and Alma Hansen (1923; repr. 1978). See further Ch. 1 n. 6. Text of 2nd edn. (1587).

Legnano: Giovanni da Legnano [John of Legnano], Tractatus de bello, de represaliis et de duello, ed. Thomas Erskine Holland (1917). See further Ch. 3 n. 83.

LW: Maurice H. Keen, The Laws of War in the Late Middle Ages (1965).

Pisan: Christine de Pisan, The Book of Fayttes of Armes and of Chyvalrye, trans. William Caxton, 1489; ed. A. T. P. Byles (1932).

Suárez: Francisco Suárez, Selections from Three Works, Carnegie edn., trans. Gwladys L. Williams, Ammi Brown, and John Waldron (1944). See further Ch. 2 n. 18 and Ch. 3 n. 73.

Vitoria: Franciscus de Vitoria, De Indis et de iure belli relectiones, Carnegie edn., trans. John Pawley Bate, ed. Ernest Nys (1917). See further Ch. 3 n. 77.

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