Crimes and accountability in Shakespeare

American Journal of International Law

Volumn 92, Issue 1, 1998, Pages 1-39

  Meron, Theodor ^a  

^a NONE

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EID: 0038898371     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2998059     Document Type: Article

References (162)

1. PHILIPPE BURRIN, HITLER ET LES JUIFS 142, 148, 163, 166-67, 172 (1989).
2. N.Y. TIMES, Nov. 6, 1996, at A5.
3. All citations of the canon are to WILLIAM SHAKESPEARE, THE COMPLETE WORKS (Stanley Wells & Gary Taylor eds., 1988). References are to act, scene and line. Some of the information in table 1, above, is taken from BLACK'S LAW DICTIONARY 1657 (6th ed. 1990).
4. All citations of the canon are to WILLIAM SHAKESPEARE, THE COMPLETE WORKS (Stanley Wells & Gary Taylor eds., 1988). References are to act, scene and line. Some of the information in table 1, above, is taken from BLACK'S LAW DICTIONARY 1657 (6th ed. 1990).
5. 4 NARRATIVE AND DRAMATIC SOURCES OF SHAKESPEARE 260, 324-25 (Geoffrey Bullough ed., 1966) [hereinafter SOURCES OF SHAKESPEARE].
6. W. G. BOSWELL-STONE, SHAKESPEARE'S HOLINSHED: THE CHRONICLE AND THE PLAYS COMPARED 161-63 (1968).
7. THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 49 (5th ed. 1956). The issues pertaining to the authority of the king, judges, and Parliament were clearly joined in 1607, when the king argued that Coke's views on the supremacy of the common law and the judges' authority to be the uncontrolled interpreters of this law meant that "I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege." 5 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 430 & nn.2-3 (4th rev. ed. 1927). Although this is not the place to discuss the dynamics of executive acceptance of decisions of the judiciary, one might consider Truman's prompt acceptance of the decision of the U.S. Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that the confiscated steel mills should be returned to the owners; and Nixon's eventual surrender of the tapes in response to the Court's ruling in United States v. Nixon, 418 U.S. 683 (1974), see STANLEY I. KUTLER, THE WARS OF WATERGATE 409, 513-16 (1990). On "culture of compliance," see Louis Henkin, International Law: Politics, Values and Functions, 216 RECUEIL DES COURS 71 (1989 IV).
8. THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 49 (5th ed. 1956). The issues pertaining to the authority of the king, judges, and Parliament were clearly joined in 1607, when the king argued that Coke's views on the supremacy of the common law and the judges' authority to be the uncontrolled interpreters of this law meant that "I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege." 5 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 430 & nn.2-3 (4th rev. ed. 1927). Although this is not the place to discuss the dynamics of executive acceptance of decisions of the judiciary, one might consider Truman's prompt acceptance of the decision of the U.S. Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that the confiscated steel mills should be returned to the owners; and Nixon's eventual surrender of the tapes in response to the Court's ruling in United States v. Nixon, 418 U.S. 683 (1974), see STANLEY I. KUTLER, THE WARS OF WATERGATE 409, 513-16 (1990). On "culture of compliance," see Louis Henkin, International Law: Politics, Values and Functions, 216 RECUEIL DES COURS 71 (1989 IV).
9. THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 49 (5th ed. 1956). The issues pertaining to the authority of the king, judges, and Parliament were clearly joined in 1607, when the king argued that Coke's views on the supremacy of the common law and the judges' authority to be the uncontrolled interpreters of this law meant that "I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege." 5 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 430 & nn.2-3 (4th rev. ed. 1927). Although this is not the place to discuss the dynamics of executive acceptance of decisions of the judiciary, one might consider Truman's prompt acceptance of the decision of the U.S. Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that the confiscated steel mills should be returned to the owners; and Nixon's eventual surrender of the tapes in response to the Court's ruling in United States v. Nixon, 418 U.S. 683 (1974), see STANLEY I. KUTLER, THE WARS OF WATERGATE 409, 513-16 (1990). On "culture of compliance," see Louis Henkin, International Law: Politics, Values and Functions, 216 RECUEIL DES COURS 71 (1989 IV).
10. THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 49 (5th ed. 1956). The issues pertaining to the authority of the king, judges, and Parliament were clearly joined in 1607, when the king argued that Coke's views on the supremacy of the common law and the judges' authority to be the uncontrolled interpreters of this law meant that "I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege." 5 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 430 & nn.2-3 (4th rev. ed. 1927). Although this is not the place to discuss the dynamics of executive acceptance of decisions of the judiciary, one might consider Truman's prompt acceptance of the decision of the U.S. Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that the confiscated steel mills should be returned to the owners; and Nixon's eventual surrender of the tapes in response to the Court's ruling in United States v. Nixon, 418 U.S. 683 (1974), see STANLEY I. KUTLER, THE WARS OF WATERGATE 409, 513-16 (1990). On "culture of compliance," see Louis Henkin, International Law: Politics, Values and Functions, 216 RECUEIL DES COURS 71 (1989 IV).
11. WALTER KAISER, PRAISERS OF FOLLY: ERASMUS, RABELAIS, SHAKESPEARE 210 (1963).
12. DAVID BEVINGTON, THE COMPLETE WORKS OF SHAKESPEARE at A-25 (1997).
13. KAISER, supra note 7, at 209-10.
14. DESIDERIUS ERASMUS, THE EDUCATION OF A CHRISTIAN PRINCE (Lester K. Born trans., 1936) (1540).
15. Id. at 113.
16. Id. at 122-23.
17. Id. at 189.
18. BEVINGTON, supra note 8, at xxiv.
19. ALBERICO GENTILI, DE LEGATIONIBUS LIBRI TRES 156 (Carnegie ed., Gordon J. Laing trans. 1924) (1594); Max Lerner, Introduction to NICCOLÒ MACHIAVELLI, THE PRINCE AND THE DISCOURSES at xxxvi-xxxvii (Max Lerner ed., 1950).
20. ALBERICO GENTILI, DE LEGATIONIBUS LIBRI TRES 156 (Carnegie ed., Gordon J. Laing trans. 1924) (1594); Max Lerner, Introduction to NICCOLÒ MACHIAVELLI, THE PRINCE AND THE DISCOURSES at xxxvi-xxxvii (Max Lerner ed., 1950).
21. ERASMUS, supra note 10, at 163.
22. Id. at 113, 117.
23. JAMES BOYD WHITE, ACTS OF HOPE 50 (1994).
24. THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS 199-202 (1993). See also Jack Benoit Gohn, Richard II: Shakespeare's Legal Brief on the Royal Prerogative and the Succession to the Throne, 70 GEO. L.J. 943 (1982).
25. THEODOR MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS 199-202 (1993). See also Jack Benoit Gohn, Richard II: Shakespeare's Legal Brief on the Royal Prerogative and the Succession to the Throne, 70 GEO. L.J. 943 (1982).
26. MAURICE H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 162 (1965).
27. For a fuller discussion, see THEODOR MERON, BLOODY CONSTRAINT: WAR AND CHIVALRY IN SHAKESPEARE, ch. IX (forthcoming).
28. GIOVANNI DA LEGNANO, TRACTATUS DE BELLO, DE REPRESALIIS ET DE DUELLO 234 (Carnegie ed., J. L. Brierly trans. 1917) (completed 1360).
29. HONORÉ BOUVET (BONET), THE TREE OF BATTLES, ch. lxxii, at 169 (G. W. Coopland ed., 1949) (c. 1387).
30. LEGNANO, supra note 22, at 289.
31. MERON, supra note 19, at 14-15.
32. 2 ALBERICO GENTILI, DE JURE BELLI LIBRI TRES 152-53 (Carnegie ed., John C. Rolfe trans. 1933) (1612). This is the 1931 translation of the 1612 edition. The first part of the book was first published in 1588, the second and third parts in 1589. Gentili argued that kings were not allowed to alienate their subjects. Id. at 373. See also MERON, supra note 19, at 189.
33. 2 ALBERICO GENTILI, DE JURE BELLI LIBRI TRES 152-53 (Carnegie ed., John C. Rolfe trans. 1933) (1612). This is the 1931 translation of the 1612 edition. The first part of the book was first published in 1588, the second and third parts in 1589. Gentili argued that kings were not allowed to alienate their subjects. Id. at 373. See also MERON, supra note 19, at 189.
34. FRANCES A. SHIRLEY, SWEARING AND PERJURY IN SHAKESPEARE'S PLAYS 80-81 (1979). For the legal arguments invoked by Shakespeare's characters to evade promises against interest, see MERON, supra note 21.
35. See generally ERNST H. KANTOROWICZ, THE KING'S TWO BODIES: A STUDY IN MEDIEVAL POLITICAL THEOLOGY (1957).
36. MERON, supra note 19, ch. 8. For a discussion of modern humanitarian law, see Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993).
37. While urging generals to prohibit and prevent rape during the sacking of a city, Vitoria reluctantly admitted the lawfulness of allowing soldiers to sack a city if "the necessities of war" required it, or "as a spur to the courage of the troops," even when rape would result. FRANCISCUS DE VITORIA, DE INDIS ET DE JURE BELLI RELECTIONES 184-85 (52) (Carnegie ed., John Pawley Bate trans. 1917) (1557, posthumous). Gentili categorically rejected the permissibility of rape. GENTILI, supra note 26, at 257. See also Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Suárez, 85 AJIL 110, 115-16 (1991).
38. While urging generals to prohibit and prevent rape during the sacking of a city, Vitoria reluctantly admitted the lawfulness of allowing soldiers to sack a city if "the necessities of war" required it, or "as a spur to the courage of the troops," even when rape would result. FRANCISCUS DE VITORIA, DE INDIS ET DE JURE BELLI RELECTIONES 184-85 (52) (Carnegie ed., John Pawley Bate trans. 1917) (1557, posthumous). Gentili categorically rejected the permissibility of rape. GENTILI, supra note 26, at 257. See also Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Suárez, 85 AJIL 110, 115-16 (1991).
39. Contamine wrote that this question was discussed infrequently in medieval sources. PHILIPPE CONTAMINE, WAR IN THE MIDDLE AGES 287 (1984). It was, however, a significant topic in the Catholic just war tradition.
40. Id. at 288.
41. Id. at 264, 267. SAINT AUGUSTINE, THE CITY OF GOD I(21) , I(26) (Henry Bettenson trans., Pelican Books 1972) (1467).
42. Id. at 264, 267. SAINT AUGUSTINE, THE CITY OF GOD I(21) , I(26) (Henry Bettenson trans., Pelican Books 1972) (1467).
43. JOSEPH SATIN, SHAKESPEARE AND HIS SOURCES 582 (1966) (quoting PLUTARCH, PARALLEL LIVES (Thomas North trans. 1579)).
44. JOSEPH SATIN, SHAKESPEARE AND HIS SOURCES 582 (1966) (quoting PLUTARCH, PARALLEL LIVES (Thomas North trans. 1579)).
45. Thomas Nagel, War and Massacre, in WAR AND MORAL RESPONSIBILITY 3, 5 (Marshall Cohen, Thomas Nagel & Thomas Scanlon eds., 1974); Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM: FOR AND AGAINST 77, 94-95 (J. J. C. Smart & Bernard Williams eds., 1963). Because utilitarianism-consequentialism attaches value to states of affairs, a person is as responsible for things that he/she allows or fails to prevent (negative responsibility) as for things that he/she causes (positive responsibility). However, critics of utilitarianism and supporters of the deontological theory of ethics, who stress individual rights and responsibilities in contrast to utilitarianism's emphasis on consequences, accord negative responsibility much weaker significance than positive responsibility. Most nonutilitarians think it would be wrong to fail to throw a life preserver to someone drowning, if this involved little cost. But if the cost of preventing the death of another is substantial, the requirement may disappear, unlike the prohibition against killing.
46. Thomas Nagel, War and Massacre, in WAR AND MORAL RESPONSIBILITY 3, 5 (Marshall Cohen, Thomas Nagel & Thomas Scanlon eds., 1974); Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM: FOR AND AGAINST 77, 94-95 (J. J. C. Smart & Bernard Williams eds., 1963). Because utilitarianism-consequentialism attaches value to states of affairs, a person is as responsible for things that he/she allows or fails to prevent (negative responsibility) as for things that he/she causes (positive responsibility). However, critics of utilitarianism and supporters of the deontological theory of ethics, who stress individual rights and responsibilities in contrast to utilitarianism's emphasis on consequences, accord negative responsibility much weaker significance than positive responsibility. Most nonutilitarians think it would be wrong to fail to throw a life preserver to someone drowning, if this involved little cost. But if the cost of preventing the death of another is substantial, the requirement may disappear, unlike the prohibition against killing.
47. The Nuremberg Charter was adopted by the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279.
48. 1950 2 Y.B. Int'l L. Comm'n 376, UN Doc. A/CN.4/SERA/1950/Add.1.
49. In re Yamashita, 327 U.S. 1 (1946).
50. Id. at 16.
51. Id. at 34-35 (Murphy, J., dissenting).
52. MICHAEL WALZER, JUST AND UNJUST WARS 320 (1977).
53. 421 U.S. 658 (1974).
54. Id. at 671.
55. Id. at 683 (Stewart, J., dissenting).
56. See, e.g., William H. Parks, Command Raponsibility for War Crimes, MIL. L. REV., Fall 1973, at 1, 37, 40-42, 103.
57. WALZER, supra note 41, at 319-22.
58. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I].
59. Christopher N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances for a Successful Prosecution, 29 U. RICH. L. REV. 191, 229 (1994). It remains to be seen whether the Hague Tribunal will consider Article 7(3) of its Statute to be significantly different from Article 86(2) of Protocol I, supra note 47.
60. Thomas Nagel, Ruthlessness in Public Life, in PUBIC AND PRIVATE MORALITY 75, 78-79 (Stuart Hampshire ed., 1978).
61. Id. at 90.
62. RICHARD H. WEISBERG, VICHY LAW AND THE HOLOCAUST IN FRANCE 65 (1996).
63. JONATHAN GLOVER, RESPONSIBILITY 176 (1970).
64. Id. at 178.
65. Prosecutor v. Erdemović, Case No. IT-96-22-A, Appeals Judgment (Oct. 7, 1997), discussed in note 57 infra [hereinafter Erdemović Appeal]. See also Theodor Meron, The Normative Impact on International Law of the International Tribunal for Former Yugoslavia, 24 ISR. Y.B. HUM. RTS. 163, 180-82 (1995); STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 123 (1997).
66. Prosecutor v. Erdemović, Case No. IT-96-22-A, Appeals Judgment (Oct. 7, 1997), discussed in note 57 infra [hereinafter Erdemović Appeal]. See also Theodor Meron, The Normative Impact on International Law of the International Tribunal for Former Yugoslavia, 24 ISR. Y.B. HUM. RTS. 163, 180-82 (1995); STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 123 (1997).
67. United States v. Von Leeb, 11 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 462, 509-15, 542-49 (1950) [hereinafter TRIALS]. See also United States v. List, id. at 757, 1236.
68. United States v. Von Leeb, 11 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 462, 509-15, 542-49 (1950) [hereinafter TRIALS]. See also United States v. List, id. at 757, 1236.
69. Von Leeb, 11 TRIALS, supra note 55, at 525-26.
70. Erdemović had been sentenced to 10 years' imprisonment, following his guilty plea to one count of a crime against humanity, for participating in the mass execution of a large number of civilian Muslim men in the aftermath of the fall of Srebrenica. Erdemović invoked duress, alleging that when he had at first refused to join in the massacre, he was told that he himself would be shot together with the Muslims. See further infra notes 81-86 and corresponding text. Cassese argued that, where the accused has been charged with participation in a collective killing that would have proceeded irrespective of whether the accused was a participant, the defense has been allowed in principle in some cases, and that Erdemović had not enjoyed any real moral choice. Cassese stated the utilitarian argument. Erdemović Appeal, supra note 54, Separate and Dissenting Opinion of Judge Cassese, at 58. See also note 35 supra. The absolutist argument was framed by Judges McDonald and Vohrah. Erdemović Appeal, supra, Joint Separate Opinion of Judge McDonald and Judge Vohrah, at 65. Brackenbury, in contrast to Erdemović, was not required to participate in murder, but only to hand the Duke over. Thomas Nagel's comment on absolutism is apposite to his case: "not everything that happens to others as a result of what one does is something that one has done to them." Nagel, supra note 35, at 10.
71. T. S. ELIOT, MURDER IN THE CATHEDRAL pt. II, at 77 (1935).
72. BOSWELL-STONE, supra note 5, at 125-26. See also EDWARD HALL, HALL'S CHRONICLE 20 (1809) (photo. reprint 1965) (1548); SATIN, supra note 34, at 103-04; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413-14. In both Holinshed and Shakespeare (Richard II, V.v.114-16), Exton demonstrates remorse for his actions.
73. BOSWELL-STONE, supra note 5, at 125-26. See also EDWARD HALL, HALL'S CHRONICLE 20 (1809) (photo. reprint 1965) (1548); SATIN, supra note 34, at 103-04; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413-14. In both Holinshed and Shakespeare (Richard II, V.v.114-16), Exton demonstrates remorse for his actions.
74. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
75. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
76. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
77. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
78. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
79. Telling of the start of the episode, Holinshed writes that King Henry said: "Haue I no 'faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?' This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton." BOSWELL-STONE, supra note 5, at 125; HALL, supra note 59, at 20; 3 SOURCES OF SHAKESPEARE, supra note 4, at 413; SATIN, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, "[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/ But sent sir Pierce of Exton a traytrous knight/ To Pomfret Castell, with other armed light." SOURCES OF SHAKESPEARE, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subtle. He writes that "Henry desired Richard's death," so that He knew this time, & yet he would not seeme Too quicke to wrath, as if affecting bloud; But yet complaines so far, that men might deeme He would twere done, & that he thought it good; And wisht that some would so his life esteeme As rid him of these feares wherein he stood: And therewith eies a knight, that then was by, Who soone could learne his lesson by his eie. Id. at 434, 456-57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: "This Knight was Sir Pierce of Exton." Id. at 457 n.1.
80. The character of a courtier ready to kill at the mere wink of authority is well described in the 1595 poem by Samuel Daniel, supra note 60, which Shakespeare may have read: The man he knew was one that willingly For one good looke would hazard soule and all, An instrument for any villanie, That needed no commission more at all: A great ease to the king that should hereby Not need in this a course of justice call, Nor seeme to wil the act, for though what's wrought Were his own deed, he grieves should so be thought. . . . . . . This knight, but o why should I call him knight To give impiety this reverent stile, Title of honour, worth, & vertues right Should not be given to a wretch so vile? Id. at 457.
81. CHRISTINE DE PISAN, BOOK OF FAYTTES OF ARMES AND OF CHYVALRYE 13-14 (William Caxton trans. 1489, A. Byles ed. 1932) (written 1408-09). See also MERON, supra note 19, at 18-19, 27-28; J. H. HEXTER, THE VISION OF POLITICS ON THE EVE OF THE REFORMATION 82-93 (1973).
82. CHRISTINE DE PISAN, BOOK OF FAYTTES OF ARMES AND OF CHYVALRYE 13-14 (William Caxton trans. 1489, A. Byles ed. 1932) (written 1408-09). See also MERON, supra note 19, at 18-19, 27-28; J. H. HEXTER, THE VISION OF POLITICS ON THE EVE OF THE REFORMATION 82-93 (1973).
83. Shakespeare's Richard III calls attention to a courtier's responsibility to discourage crimes by leaders when King Edward complains bitterly that none of his aides had pleaded against his order to execute the Duke of Clarence (Richard III, II.i.107-33).
84. Writings on the Second World War demonstrate that orders to commit atrocities were often not accompanied by duress, at least, as Michael Walzer pointed out, not to the extent of implicating the risk of death. WALZER, supra note 41, at 314. In most cases, reluctance to carry out such orders resulted in a transfer to hardship posts and other harm to one's career. The Nuremberg Tribunal's High Command Case discussed the range of options available to German staff officers faced with an illegal order: they could issue orders countermanding the order, resign, or sabotage the order. Von Leeb, 11 TRIALS, supra note 55, at 511.
85. MICHAEL MANHEIM, THE WEAK KING DILEMMA IN THE SHAKESPEAREAN HISTORY PLAY 134 (1973).
86. BOSWELL-STONE, supra note 5, at 72.
87. Shakespeare's treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 SOURCES OF SHAKESPEARE, supra note 4, at 4, 22. Holinshed's account of the conversation between Hubert and Arthur and his story about Arthur's death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall. F. M. POWICKE, WAYS OF MEDIEVAL LIFE AND THOUGHT 27 (1949). See also 4 SOURCES OF SHAKESPEARE, supra, at 15, 55-60. Holinshed's explanations for Arthur's death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. POWICKE, supra, at 32, explains that the main authority for Arthur's disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.
88. Shakespeare's treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 SOURCES OF SHAKESPEARE, supra note 4, at 4, 22. Holinshed's account of the conversation between Hubert and Arthur and his story about Arthur's death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall. F. M. POWICKE, WAYS OF MEDIEVAL LIFE AND THOUGHT 27 (1949). See also 4 SOURCES OF SHAKESPEARE, supra, at 15, 55-60. Holinshed's explanations for Arthur's death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. POWICKE, supra, at 32, explains that the main authority for Arthur's disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.
89. Shakespeare's treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 SOURCES OF SHAKESPEARE, supra note 4, at 4, 22. Holinshed's account of the conversation between Hubert and Arthur and his story about Arthur's death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall. F. M. POWICKE, WAYS OF MEDIEVAL LIFE AND THOUGHT 27 (1949). See also 4 SOURCES OF SHAKESPEARE, supra, at 15, 55-60. Holinshed's explanations for Arthur's death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. POWICKE, supra, at 32, explains that the main authority for Arthur's disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.
90. Shakespeare's treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 SOURCES OF SHAKESPEARE, supra note 4, at 4, 22. Holinshed's account of the conversation between Hubert and Arthur and his story about Arthur's death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall. F. M. POWICKE, WAYS OF MEDIEVAL LIFE AND THOUGHT 27 (1949). See also 4 SOURCES OF SHAKESPEARE, supra, at 15, 55-60. Holinshed's explanations for Arthur's death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. POWICKE, supra, at 32, explains that the main authority for Arthur's disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.
91. Shakespeare's treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 SOURCES OF SHAKESPEARE, supra note 4, at 4, 22. Holinshed's account of the conversation between Hubert and Arthur and his story about Arthur's death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall. F. M. POWICKE, WAYS OF MEDIEVAL LIFE AND THOUGHT 27 (1949). See also 4 SOURCES OF SHAKESPEARE, supra, at 15, 55-60. Holinshed's explanations for Arthur's death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. POWICKE, supra, at 32, explains that the main authority for Arthur's disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.
92. 4 SOURCES OF SHAKESPEARE ,supra note 4, at 108.
93. Id.
94. Id.
95. Id.
96. Id. at 111.
97. Id.
98. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, supra note 36, Art. 8.
99. See generally YORAM DINSTEIN, THE DEFENCE OF OBEDIENCE TO SUPERIOR ORDERS IN INTERNATIONAL LAW (1965).
100. Hartmuth Horstkotte, The Role of Criminal Law in Dealing with East Germany's Past: The Mauerschützen Cases, in DEMOCRACY, MARKET ECONOMY, AND THE LAW 213, 215 (Werner F. Ebke & Detlev Vagts eds., 1995).
101. Id. at 216.
102. See, e.g., decision of Nov. 3, 1992 (Border Guards Prosecution Case), 100 ILR 366 (Fed. Sup. Ct.).
103. Horstkotte, supra note 77, at 221. For the decision, July 26, 1994, see 1994 NEUE JURISTISCHE WOCHENSCHRIFT 2703. I am grateful to Professors Andreas Lowenfeld and Detlev Vagts for the translation.
104. Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgment (Nov. 29, 1996). See also supra note 57.
105. Id., para. 80.
106. Id., paras. 53-54.
107. Id., para. 50. For the requirements regarding superior orders as a defense or as a ground for mitigation in U.S. practice see U.S. DEPARTMENT OF DEFENSE, THE MANUAL FOR COURTS MARTIAL, UNITED STATES, Rules for Court Martial No. 916(b) (1984); U.S. DEPARTMENT OF THE ARMY, LAW OF LAND WARFARE §509 (Field Manual 27-10, 1956).
108. Id., para. 50. For the requirements regarding superior orders as a defense or as a ground for mitigation in U.S. practice see U.S. DEPARTMENT OF DEFENSE, THE MANUAL FOR COURTS MARTIAL, UNITED STATES, Rules for Court Martial No. 916(b) (1984); U.S. DEPARTMENT OF THE ARMY, LAW OF LAND WARFARE §509 (Field Manual 27-10, 1956).
109. Id., para. 50. For the requirements regarding superior orders as a defense or as a ground for mitigation in U.S. practice see U.S. DEPARTMENT OF DEFENSE, THE MANUAL FOR COURTS MARTIAL, UNITED STATES, Rules for Court Martial No. 916(b) (1984); U.S. DEPARTMENT OF THE ARMY, LAW OF LAND WARFARE §509 (Field Manual 27-10, 1956).
110. Case No. IT-96-22-T, supra note 81, para. 91.
111. Id., para. 111.
112. MANHEIM, supra note 65, at 95.
113. Id. at 99.
114. HERBERT MORRIS, ON GUILT AND INNOCENCE: ESSAYS IN LEGAL PHILOSOPHY AND MORAL PSYCHOLOGY 1-2 (1976).
115. Id. at 16. See H. Ansgar Kelly, The Right to Remain Silent: Before and After Joan of Arc, 68 SPECULUM 992 (1993).
116. Id. at 16. See H. Ansgar Kelly, The Right to Remain Silent: Before and After Joan of Arc, 68 SPECULUM 992 (1993).
117. MORRIS, supra note 89, at 16.
118. BOSWELL-STONE, supra note 5, at 267.
119. 3 SOURCES OF SHAKESPEARE, supra note 4, at 111.
120. The historian Paul Murray Kendall presented King Edward as the architect of Clarence's murder and offered no suggestion that could point to Richard as the culprit. Furthermore, he described Clarence as a dangerous competitor to Edward and as largely responsible for much of what would befall him in the near future: once the "Duke of Clarence had grown ripe with secret hopes and private visions," he began to pose a threat to his brother, the king. PAUL MURRAY KENDALL, RICHARD THE THIRD 122 (1965). After Clarence arranged for the hanging of his former wife's servant, thus arrogating to himself authority he did not have, King Edward accused Clarence of "subverting the laws of the realm and presuming to take justice into his own hands," id. at 125, and ordered him imprisoned in the Tower. Unlike the chroniclers, who accused Richard of complicity in the imprisonment and murder of Clarence either indirectly or directly, Kendall described Richard as dismayed by Clarence's fate and recounted how Richard in fact "pleaded with King Edward for George's life." Id. Jacobs similarly rejected Shakespeare's imputation of responsibility to Richard for the death of Clarence. E. F. Jacob, The Fifteenth Century: 1399-1485, in THE OXFORD HISTORY OF ENGLAND 608 (George Clark ed., 1961).
121. The historian Paul Murray Kendall presented King Edward as the architect of Clarence's murder and offered no suggestion that could point to Richard as the culprit. Furthermore, he described Clarence as a dangerous competitor to Edward and as largely responsible for much of what would befall him in the near future: once the "Duke of Clarence had grown ripe with secret hopes and private visions," he began to pose a threat to his brother, the king. PAUL MURRAY KENDALL, RICHARD THE THIRD 122 (1965). After Clarence arranged for the hanging of his former wife's servant, thus arrogating to himself authority he did not have, King Edward accused Clarence of "subverting the laws of the realm and presuming to take justice into his own hands," id. at 125, and ordered him imprisoned in the Tower. Unlike the chroniclers, who accused Richard of complicity in the imprisonment and murder of Clarence either indirectly or directly, Kendall described Richard as dismayed by Clarence's fate and recounted how Richard in fact "pleaded with King Edward for George's life." Id. Jacobs similarly rejected Shakespeare's imputation of responsibility to Richard for the death of Clarence. E. F. Jacob, The Fifteenth Century: 1399-1485, in THE OXFORD HISTORY OF ENGLAND 608 (George Clark ed., 1961).
122. The historian Paul Murray Kendall presented King Edward as the architect of Clarence's murder and offered no suggestion that could point to Richard as the culprit. Furthermore, he described Clarence as a dangerous competitor to Edward and as largely responsible for much of what would befall him in the near future: once the "Duke of Clarence had grown ripe with secret hopes and private visions," he began to pose a threat to his brother, the king. PAUL MURRAY KENDALL, RICHARD THE THIRD 122 (1965). After Clarence arranged for the hanging of his former wife's servant, thus arrogating to himself authority he did not have, King Edward accused Clarence of "subverting the laws of the realm and presuming to take justice into his own hands," id. at 125, and ordered him imprisoned in the Tower. Unlike the chroniclers, who accused Richard of complicity in the imprisonment and murder of Clarence either indirectly or directly, Kendall described Richard as dismayed by Clarence's fate and recounted how Richard in fact "pleaded with King Edward for George's life." Id. Jacobs similarly rejected Shakespeare's imputation of responsibility to Richard for the death of Clarence. E. F. Jacob, The Fifteenth Century: 1399-1485, in THE OXFORD HISTORY OF ENGLAND 608 (George Clark ed., 1961).
123. The historian Paul Murray Kendall presented King Edward as the architect of Clarence's murder and offered no suggestion that could point to Richard as the culprit. Furthermore, he described Clarence as a dangerous competitor to Edward and as largely responsible for much of what would befall him in the near future: once the "Duke of Clarence had grown ripe with secret hopes and private visions," he began to pose a threat to his brother, the king. PAUL MURRAY KENDALL, RICHARD THE THIRD 122 (1965). After Clarence arranged for the hanging of his former wife's servant, thus arrogating to himself authority he did not have, King Edward accused Clarence of "subverting the laws of the realm and presuming to take justice into his own hands," id. at 125, and ordered him imprisoned in the Tower. Unlike the chroniclers, who accused Richard of complicity in the imprisonment and murder of Clarence either indirectly or directly, Kendall described Richard as dismayed by Clarence's fate and recounted how Richard in fact "pleaded with King Edward for George's life." Id. Jacobs similarly rejected Shakespeare's imputation of responsibility to Richard for the death of Clarence. E. F. Jacob, The Fifteenth Century: 1399-1485, in THE OXFORD HISTORY OF ENGLAND 608 (George Clark ed., 1961).
124. KENDALL, supra note 94, at 126.
125. Id.
126. F. J. LEVY, TUDOR HISTORICAL THOUGHT 72 (1967).
127. Shakespeare seems to have drawn inspiration for his story from literary sources, including "George, Duke of Clarence," in A Myrroure for Magistrates, supra note 60, at 301, and the anonymous poem, The True Tragedy of Richard III (c. 1594), in 3 SOURCES OF SHAKESPEARE, supra note 4, at 317. See also SATIN, supra note 34, at 62-71. The former poem apportions the blame between Richard and King Edward, but places the primary responsibility for the actual murder on Richard. This poem may well have encouraged Shakespeare's desire to depict Richard as the principal culprit. The poet, William Baldwin, discusses Edward's order to imprison the Duke of Clarence in the Tower, and describes Richard's wish to use the opportunity to remove Clarence, a competitor for the Crown, and plot his end. Thus, according to this source, while Edward may have condemned Clarence to death, Richard incited the king, plotted the murder, and actually committed the crime. "George, Duke of Clarence," supra, at 304-05. Richard's responsibility is also highlighted in the prologue to The True Tragedy of Richard III, in which Truth describes Richard as the person who actually drowned Clarence "in a butt of wine." SATIN, supra, at 63. In Richard III, Clarence decries the lack of legal proceedings and declares his innocence (I.iv.176-87). Shakespeare knew from the chroniclers that Clarence had been tried and convicted by Parliament, but he must have chosen to follow the literary sources to support the historically inaccurate claim of the total absence of judicial process. Thus, Shakespeare may have been echoing poet William Baldwin, who, speaking as the Duke of Clarence, states, "Take me for one of this wrong punisht sect, / Imprisoned first, accused without cause, / And doen to death, no proces had by lawes." "George, Duke of Clarence," supra, at 301.
128. Shakespeare seems to have drawn inspiration for his story from literary sources, including "George, Duke of Clarence," in A Myrroure for Magistrates, supra note 60, at 301, and the anonymous poem, The True Tragedy of Richard III (c. 1594), in 3 SOURCES OF SHAKESPEARE, supra note 4, at 317. See also SATIN, supra note 34, at 62-71. The former poem apportions the blame between Richard and King Edward, but places the primary responsibility for the actual murder on Richard. This poem may well have encouraged Shakespeare's desire to depict Richard as the principal culprit. The poet, William Baldwin, discusses Edward's order to imprison the Duke of Clarence in the Tower, and describes Richard's wish to use the opportunity to remove Clarence, a competitor for the Crown, and plot his end. Thus, according to this source, while Edward may have condemned Clarence to death, Richard incited the king, plotted the murder, and actually committed the crime. "George, Duke of Clarence," supra, at 304-05. Richard's responsibility is also highlighted in the prologue to The True Tragedy of Richard III, in which Truth describes Richard as the person who actually drowned Clarence "in a butt of wine." SATIN, supra, at 63. In Richard III, Clarence decries the lack of legal proceedings and declares his innocence (I.iv.176-87). Shakespeare knew from the chroniclers that Clarence had been tried and convicted by Parliament, but he must have chosen to follow the literary sources to support the historically inaccurate claim of the total absence of judicial process. Thus, Shakespeare may have been echoing poet William Baldwin, who, speaking as the Duke of Clarence, states, "Take me for one of this wrong punisht sect, / Imprisoned first, accused without cause, / And doen to death, no proces had by lawes." "George, Duke of Clarence," supra, at 301.
129. KENDALL, supra note 94, at 398-402. See also Jacob, supra note 94, at 624; BOSWELL-STONE, supra note 5, at 387-94; and SATIN, supra note 34, at 1.
130. BOSWELL-STONE, supra note 5, at 389. For Hall's version of this episode, see 3 SOURCES OF SHAKESPEARE, supra note 4, at 277.
131. BOSWELL-STONE, supra note 5, at 389.
132. 3 SOURCES OF SHAKESPEARE, supra note 4, at 278-79.
133. HALL, supra note 59, at 352.
134. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
135. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
136. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
137. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
138. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
139. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More
140. Hall wrote: Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . . Id. Leaving aside canon law, at least in the common law Buckingham's and Holinshed's legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See J. H. Baker, The English Law of Sanctuary, 2 ECCLESIASTICAL L.J. 8 (1990-92); 21 THE REPORTS OF SIR JOHN SPELMAN 335-39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Porydore Vergil, in Deinventoribus rerun f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.
141. SATIN, supra note 34, at 16.
142. In Hall, the Cardinal says: But I trust quod he, we shall not nede it [to use force], but for any maner of nede I would we should not do it, I trust that she with reason shalbe contented and all thing in good maner obteined. And yf it hap that I brynge it not to passe, yet shall I further it to my best power, so that you all shall perceyue my good wyll, diligence, and indeauoure. HALL, supra note 59, at 353.
143. Nonetheless, Shakespeare was certainly aware of Hall's detailed account of the discussion between the Cardinal and the Queen. The Cardinal cajoles, promises, and repeats Buckingham's legal sophistry, assuring the Queen that no harm will befall the prince, and threatens that, in the absence of her consent, the prince will be forcibly removed: "they recon no priuilege broken, although they fetch him out of sanctuarie, whiche yf you finally refuse too deliver hym." Id. at 356. In response, the Queen pleads, invoking the prince's poor health, her need to care for him, the jeopardy to which he will be exposed and her right, even in the absence of sanctuary privileges, to be the guardian of her son. Finally, once the exasperated Cardinal pledges the prince's safety with his own body and soul, the Queen yields. However, this is compulsion, not consent. On the immunity of churches in medieval ordinances, see MERON, supra note 19, ch. 8. Although Shakespeare's tale ends here, the chroniclers' story refers to the events following York's removal from sanctuary. Richard III was also concerned about the danger the princesses posed to his monarchical claims. According to the Croyland Chronicle, the history of the Croyland Monastery, Richard learned that the king's daughters were told to go abroad so that, "if any fatal mishap should befall the male children of the late king in the Tower, the kingdom might still, in consequence of the safety of daughters, some day fall again into the hands of the rightful heirs." CHARLES T. WOOD, THE AGE OF CHIVALRY 188 (1970). Richard responded immediately apparently with the "purpose of ending [the] relative freedom of action for those in sanctuary," by appointing men to guard the church of Westminster, setting "a watch upon all the inlets and outlets of the monastery so that not one of the persons there shut up could go forth, and no one could enter, without his permission." Id. at 189.
144. Nonetheless, Shakespeare was certainly aware of Hall's detailed account of the discussion between the Cardinal and the Queen. The Cardinal cajoles, promises, and repeats Buckingham's legal sophistry, assuring the Queen that no harm will befall the prince, and threatens that, in the absence of her consent, the prince will be forcibly removed: "they recon no priuilege broken, although they fetch him out of sanctuarie, whiche yf you finally refuse too deliver hym." Id. at 356. In response, the Queen pleads, invoking the prince's poor health, her need to care for him, the jeopardy to which he will be exposed and her right, even in the absence of sanctuary privileges, to be the guardian of her son. Finally, once the exasperated Cardinal pledges the prince's safety with his own body and soul, the Queen yields. However, this is compulsion, not consent. On the immunity of churches in medieval ordinances, see MERON, supra note 19, ch. 8. Although Shakespeare's tale ends here, the chroniclers' story refers to the events following York's removal from sanctuary. Richard III was also concerned about the danger the princesses posed to his monarchical claims. According to the Croyland Chronicle, the history of the Croyland Monastery, Richard learned that the king's daughters were told to go abroad so that, "if any fatal mishap should befall the male children of the late king in the Tower, the kingdom might still, in consequence of the safety of daughters, some day fall again into the hands of the rightful heirs." CHARLES T. WOOD, THE AGE OF CHIVALRY 188 (1970). Richard responded immediately apparently with the "purpose of ending [the] relative freedom of action for those in sanctuary," by appointing men to guard the church of Westminster, setting "a watch upon all the inlets and outlets of the monastery so that not one of the persons there shut up could go forth, and no one could enter, without his permission." Id. at 189.
145. Nonetheless, Shakespeare was certainly aware of Hall's detailed account of the discussion between the Cardinal and the Queen. The Cardinal cajoles, promises, and repeats Buckingham's legal sophistry, assuring the Queen that no harm will befall the prince, and threatens that, in the absence of her consent, the prince will be forcibly removed: "they recon no priuilege broken, although they fetch him out of sanctuarie, whiche yf you finally refuse too deliver hym." Id. at 356. In response, the Queen pleads, invoking the prince's poor health, her need to care for him, the jeopardy to which he will be exposed and her right, even in the absence of sanctuary privileges, to be the guardian of her son. Finally, once the exasperated Cardinal pledges the prince's safety with his own body and soul, the Queen yields. However, this is compulsion, not consent. On the immunity of churches in medieval ordinances, see MERON, supra note 19, ch. 8. Although Shakespeare's tale ends here, the chroniclers' story refers to the events following York's removal from sanctuary. Richard III was also concerned about the danger the princesses posed to his monarchical claims. According to the Croyland Chronicle, the history of the Croyland Monastery, Richard learned that the king's daughters were told to go abroad so that, "if any fatal mishap should befall the male children of the late king in the Tower, the kingdom might still, in consequence of the safety of daughters, some day fall again into the hands of the rightful heirs." CHARLES T. WOOD, THE AGE OF CHIVALRY 188 (1970). Richard responded immediately apparently with the "purpose of ending [the] relative freedom of action for those in sanctuary," by appointing men to guard the church of Westminster, setting "a watch upon all the inlets and outlets of the monastery so that not one of the persons there shut up could go forth, and no one could enter, without his permission." Id. at 189.
146. MANHEIM, supra note 65, at 134.
147. Id. at 4. See also David M. White, Shakespeare and Psychological Warfare, 12 PUB. OPINION Q. 68 (1948).
148. Id. at 4. See also David M. White, Shakespeare and Psychological Warfare, 12 PUB. OPINION Q. 68 (1948).
149. Lerner, supra note 15, at xxxix-xl.
150. MACHIAVELLI, supra note 15, at 65.
151. Id. at 64.
152. Id.
153. Id. at 406-07 (ch. IV of THE DISCOURSES).
154. MERON, supra note 19, at 201-06.
155. Id. at 159-60.
156. Id. at 166-69. See also GENTILI, supra note 24, at 212.
157. Geneva Convention (No. III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 13, 6 UST 3316, 75 UNTS 135.
158. See Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Art. 60, reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiří Toman eds., 3d ed. 1988).
159. Theodor Meron, Francis Lieber's Code and Principles of Humanity, 36 COLUM. J. TRANSNAT'L L. 269, 273 (1997), and in POLITICS, VALUES AND FUNCTIONS: INTERNATIONAL LAW IN THE 21ST CENTURY, ESSAYS IN HONOR OF PROFESSOR LOUIS HENKIN 249, 252-53 (Jonathan I. Charney, Donald K. Anton & Mary Ellen O'Connell eds., 1997).
160. Theodor Meron, Francis Lieber's Code and Principles of Humanity, 36 COLUM. J. TRANSNAT'L L. 269, 273 (1997), and in POLITICS, VALUES AND FUNCTIONS: INTERNATIONAL LAW IN THE 21ST CENTURY, ESSAYS IN HONOR OF PROFESSOR LOUIS HENKIN 249, 252-53 (Jonathan I. Charney, Donald K. Anton & Mary Ellen O'Connell eds., 1997).
161. Convention (No. IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.
162. GESTA HENRICI QUINTI 92-93 (Frank Taylor & John S. Roskell eds., 1975) (1416-17).