I once heard that a prince and a very great captain held that a soldier could not be sentenced to death for cowardice of heart. At table, he was told the story of the Lord of Vervins, who was sentenced to death for surrendering Boulogne. In truth, it is right that a great difference be made between the faults that come from our weakness and those that come from our malice.
For in these, we have deliberately set ourselves against the rules of reason, which nature has imprinted in us; and in those, it seems that we can call upon nature itself to vouch for us. For having left us in such imperfection and failure, so that many people have thought that we can only be held accountable for what we do against our conscience, this rule partly underpins the opinion of those who condemn capital punishment for heretics and miscreants. It also establishes that a lawyer and a judge cannot be held accountable for what they have failed to do in their role through ignorance.
But as for cowardice, it is certain that the most common way to punish it is through shame and ignominy. And it is held that this rule was first put into practice by the legislator Charondas; and that before him the laws of Greece punished with death those who fled from battle, where he only ordered that they should sit for three days in the public square, dressed in women’s robes, still hoping to be able to use them, having restored their courage through this shame.
To shed human blood for evils rather than to shed evil. (Tertullian)
It also seems that Roman laws formerly condemned those who fled to death. For Ammianus Marcellinus relates that the Emperor Julian condemned ten of his soldiers, who had turned their backs in a charge against the Parthians, to be degraded, and then to suffer death, following, he said, the ancient laws. However, elsewhere for a similar offense he condemns others only to be held among the prisoners under the ensign of the baggage. The harsh condemnation of the Roman people against the soldiers who escaped from Cannes and, in that same war, against those who accompanied Cnaeus Fulvius in his defeat, did not come to death.
It is to be feared that shame will despair them and make them not only cold but enemies. In the time of our Fathers the lord of Franget, formerly Lieutenant of the Company of Monsieur le Mareschal de Chastillon, having been appointed by Monsieur le Mareschal de Chabanes Governor of Fontarrabie in place of Monsieur du Lude, and having surrendered it to the Spaniards, was condemned to be stripped of his nobility. Both he and his posterity declared commoners, liable to taxation, and incapable of bearing arms, this harsh sentence was carried out in Lyon.
Since then, all the gentlemen who were in Guyse when the Count of Nansau entered it have suffered the same punishment, as have others since. However, when there is such gross and obvious ignorance or cowardice, surpassing all the ordinary, it would be reasonable to take it as sufficient proof of wickedness and malice, and to punish it as such.