Part 5

[40] The pivotal character of Trial by Battle, as an illustration of War, will justify a reference to the modern authorities, among which are Robertson, who treats it with perspicuity and fulness (History of Charles V., Vol. I. note 22),--Hallam, always instructive (Middle Ages, Vol. I. Chap. II. pt. 2),--Blackstone, always clear (Commentaries, Book III. ch. 22, sec. 5, and Book IV. ch. 27, sec. 3),--Montesquieu, who casts upon it a flood of light (Esprit des Lois, Liv. XXVIII. ch. 18-33),--Sismondi, humane and interesting (Histoire des Français, Part. IV. ch. 11, Tom. VIII. pp. 72-78),--Guizot, in a work of remarkable historic beauty, more grave than Montesquieu, and enlightened by a better philosophy (Histoire de la Civilisation en France depuis la Chute de l'Empire Romain, Tom. IV. pp. 89, 149-166),--Wheaton, our learned countryman (History of the Northmen, Chap. III. and XII.),--also the two volumes of Millingen's History of Duelling, if so loose a compend deserves a place in this list. All these, describing Trial by Battle, testify against War. I cannot conceal that so great an authority as Selden, a most enlightened jurist of the Long Parliament, argues the lawfulness of the Duel from the lawfulness of War. After setting forth that "a duel may be granted in some cases by the law of England," he asks, "But whether is this lawful?" and then answers, "_If you grant any war lawful_, I make no doubt but to convince it." (Table-Talk: _Duel_.) But if the Duel be unlawful, how then with War?

No question was too sacred, grave, or recondite for this tribunal. In France, the title of an Abbey to a neighboring church was decided by it; and an Emperor of Germany, according to a faithful ecclesiastic, "desirous of dealing _honorably_ with his people and nobles" (mark here the standard of honor!), waived the judgment of the court on a grave question of law concerning the descent of property, and referred it to champions. Human folly did not stop here. In Spain, a subtile point of theology was submitted to the same determination.[41] But Trial by Battle was not confined to particular countries or to rare occasions. It prevailed everywhere in Europe, superseding in many places all other ordeals, and even _Trials by Proofs_, while it extended not only to criminal matters, but to questions of property. In Orléans it had an exceptional limitation, being denied in civil matters where the amount did not exceed five sous.[42]

[41] Robertson, Hist. Charles V., Vol. I. note 22.

[42] Montesquieu, Esprit des Lois, Liv. XXVIII. ch. 19.

Like War in our day, its justice and fitness as an arbitrament were early doubted or condemned. Liutprand, a king of the Lombards, during that middle period neither ancient nor modern, in a law bearing date A.D. 724, declares his distrust of it as a mode of determining justice; but the monarch is compelled to add, that, considering the _custom_ of his Lombard people, he cannot forbid the _impious law_. His words deserve emphatic mention: "_Propter consuetudinem gentis nostræ Langobardorum_ LEGEM IMPIAM _vetare non possumus_ ..."[43] The appropriate epithet by which he branded Trial by Battle is the important bequest of the royal Lombard to a distant posterity. For this the lawgiver will be cherished with grateful regard in the annals of civilization.

[43] Liutprandi Leges, Lib. VI. cap. 65: Muratori, Rerum Italic. Script., Tom. I. pars 2, p. 74.

This custom received another blow from Rome. In the latter part of the thirteenth century, Don Pedro of Aragon, after exchanging letters of defiance with Charles of Anjou, proposed a personal combat, which was accepted, on condition that Sicily should be the prize of success. Each called down upon himself all the vengeance of Heaven, and the last dishonor, if, at the appointed time, he failed to appear before the Seneschal of Aquitaine, or, in case of defeat, refused to consign Sicily undisturbed to the victor. While they were preparing for the lists, the Pope, Martin the Fourth, protested with all his might against this new Trial by Battle, which staked the sovereignty of a kingdom, a feudatory of the Holy See, on a wild stroke of chance. By a papal bull, dated at Civita Vecchia, April 5th, 1283, he threatened excommunication to either of the princes who should proceed to a combat which he pronounced _criminal_ and _abominable_. By a letter of the same date, the Pope announced to Edward the First of England, Duke of Aquitaine, the agreement of the two princes, which he most earnestly declared to be full of indecency and rashness, hostile to the concord of Christendom, and reckless of Christian blood; and he urged upon the English monarch all possible effort to prevent the combat,--menacing him with excommunication, and his territories with interdict, if it should take place. Edward refusing to guaranty the safety of the combatants in Aquitaine, the parties retired without consummating their duel.[44] The judgment of the Holy See, which thus accomplished its immediate object, though not in terms directed to the suppression of the _custom_, remains, nevertheless, from its peculiar energy, a perpetual testimony against Trial by Battle.

[44] Sismondi, Hist. des Français, Part. IV. ch. 15, Tom. VIII. pp. 338-347.

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To a monarch of France belongs the honor of first interposing the royal authority for the entire suppression within his jurisdiction of this _impious custom_, so universally adopted, so dear to the nobility, and so profoundly rooted in the institutions of the Feudal Age. And here let me pause with reverence as I pronounce the name of St. Louis, a prince whose unenlightened errors may find easy condemnation in an age of larger toleration and wider knowledge, but whose firm and upright soul, exalted sense of justice, fatherly regard for the happiness of his people, respect for the rights of others, conscience void of offence toward God or man, make him foremost among Christian rulers, and the highest example for Christian prince or Christian people,--in one word, a model of True Greatness. He was of angelic conscience, subjecting whatever he did to the single and exclusive test of moral rectitude, disregarding every consideration of worldly advantage, all fear of worldly consequences.

His soul, thus tremblingly sensitive to right, was shocked at the judicial combat. It was a sin, in his sight, thus to _tempt God_, by demanding of him a miracle, whenever judgment was pronounced. From these intimate convictions sprang a royal ordinance, promulgated first at a Parliament assembled in 1260: "_We forbid to all persons throughout our dominions the_ TRIAL BY BATTLE; ... _and instead of battles, we establish proofs by witnesses_.... AND THESE BATTLES WE ABOLISH IN OUR DOMINIONS FOREVER."[45]

[45] Guizot, Hist. de la Civilisation en France, Leçon 14, Vol. IV. pp. 162-164.

Such were the restraints on the royal authority, that this beneficent ordinance was confined in operation to the demesnes of the king, not embracing those of the barons and feudatories. But where the power of the sovereign did not reach, there he labored by example, influence, and express intercession,--treating with the great vassals, and inducing many to renounce this unnatural usage. Though for years later it continued to vex parts of France, its overthrow commenced with the Ordinance of St. Louis.

Honor and blessings attend this truly Christian king, who submitted all his actions to the Heaven-descended sentiment of Duty,--who began a long and illustrious reign by renouncing and restoring conquests of his predecessor, saying to those about him, whose souls did not ascend to his heights, "I know that the predecessors of the King of England lost altogether by right the conquest which I hold; and the land which I give him I do not give because I am bound to him or his heirs, _but to put love between my children and his children, who are cousins-german_; and it seems to me that what I thus give I employ to good purpose."[46] Honor to him who never by force or cunning grasped what was not his own,--who sought no advantage from the turmoil and dissension of his neighbors,--who, first of Christian princes, rebuked the Spirit of War, saying to those who would have him profit by the strifes of others, "Blessed are the peacemakers,"[47]--who, by an immortal ordinance, abolished Trial by Battle throughout his dominions,--who extended equal justice to all, whether his own people or his neighbors, and in the extremity of his last illness, before the walls of Tunis, under a burning African sun, among the bequests of his spirit, enjoined on his son and successor, "in maintaining justice, to be inflexible and loyal, turning neither to the right hand nor to the left."[48]

[46] Guizot, Hist. de la Civilisation en France, Leçon 14, Vol. IV. p. 151.

[47] "_Benoist soient tuit li apaiseur._"--Joinville, p. 143.

[48] Sismondi, Hist. des Français, Part. IV. ch. 12, Tom. VIII. p. 196.

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To condemn Trial by Battle no longer requires the sagacity above his age of the Lombard monarch, or the intrepid judgment of the Sovereign Pontiff, or the ecstatic soul of St. Louis. An incident of history, as curious as it is authentic, illustrates this point, and shows the certain progress of opinion; and this brings me to England, where this trial was an undoubted part of the early Common Law, with peculiar ceremonies sanctioned by the judges robed in scarlet. The learned Selden, not content with tracing its origin, and exhibiting its forms, with the oath of the duellist, "As God me help, and his saints of Paradise," shows also the copartnership of the Church through its liturgy appointing prayers for the occasion.[49] For some time it was the only mode of trying a writ of right, by which the title to real property was determined, and the fines from the numerous cases formed no inconsiderable portion of the King's revenue.[50] It was partially restrained by Henry the Second, under the advice of his chief justiciary, the ancient law-writer, Glanville, substituting the Grand Assize as an alternative, on the trial of a writ of right; and the reason assigned for this substitution was the uncertainty of the Duel, so that after many and long delays justice was scarcely obtained, in contrast with the other trial, which was more convenient and swift.[51] At a later day, Trial by Battle was rebuked by Elizabeth, who interposed to compel the parties to a composition,--although, for the sake of their _honor_, as it was called, the lists were marked out and all the preliminary forms observed with much ceremony.[52] It was awarded under Charles the First, and the proceeding went so far that a day was proclaimed for the combatants to appear with spear, long sword, short sword, and dagger, when the duel was adjourned from time to time, and at last the king compelled an accommodation without bloodshed.[53] Though fallen into desuetude, quietly overruled by the enlightened sense of successive generations, yet, to the disgrace of English jurisprudence, it was not legislatively abolished till near our own day,--as late as 1819,--the right to it having been openly claimed in Westminster Hall only two years previous. An ignorant man, charged with murder,--whose name, Abraham Thornton, is necessarily connected with the history of this monstrous usage,--being proceeded against by the ancient process of appeal, pleaded, when brought into court, as follows: "Not guilty; and I am ready to defend the same by my body": and thereupon taking off his glove, he threw it upon the floor. The appellant, not choosing to accept this challenge, abandoned his proceedings. The bench, the bar, and the whole kingdom were startled by the infamy; and at the next session of Parliament Trial by Battle was abolished in England. In the debate on this subject, the Attorney-General remarked, in appropriate terms, that, "if the appellant had persevered in the Trial by Battle, he had no doubt the legislature would have felt it their imperious duty at once to interfere, and pass _an ex post facto law to prevent so degrading a spectacle from taking place_."[54]

[49] Selden, The Duello, or Single Combat, from Antiquity derived into this Kingdom of England; also, Table Talk, _Duel_: Works, Vol. III. col. 49-84, 2027.

[50] Madox, Hist. of Exchequer, Vol. I. p. 349.

[51] "Est autem magna Assisa regale quoddam beneficium, ... quo vitæ hominum et status integritati tam salubriter consulitur, ut in jure quod quis in libero soli tenemento possidet retinendo, duelli casum declinare possunt homines ambiguum.... Jus enim, _quod post mullas et longas dilationes vix evincitur per duellum_, per beneficium istius constitutionis commodius et acceleratius expeditur." (Glanville, Tractatus de Legibus et Consuetudinibus Regni Angliæ, Lib. II. cap. 7.) These pointed words are precisely applicable to our Arbitrament of War, with its many and long delays, so little productive of justice.

[52] Robertson, Hist. Charles V., Vol. I. note 22.

[53] Proceedings in the Court of Chivalry, on an Appeal of High Treason by Donald Lord Rea against Mr. David Ramsay, 7 Cha. I., 1631: Hargrave's State Trials, Vol. XI. pp. 124-131.

[54] Hansard, Parl. Debates, XXXIX. 1104. Blackstone, Com., III. 337: Chitty's note.

These words evince the disgust which Trial by Battle excites in our day. Its folly and wickedness are conspicuous to all. Reverting to that early period in which it prevailed, our minds are impressed by the general barbarism; we recoil with horror from the awful subjection of justice to brute force,--from the impious profanation of God in deeming him present at these outrages,--from the moral degradation out of which they sprang, and which they perpetuated; we enrobe ourselves in self-complacent virtue, and thank God that we are not as these men,--that ours is an age of light, while theirs was an age of darkness!

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But remember, fellow-citizens, that this criminal and impious custom, which all condemn in the case of individuals, is openly avowed by our own country, and by other countries of the great Christian Federation, nay, that it is expressly _established_ by International Law, as the proper mode of determining _justice_ between nations,--while the feats of hardihood by which it is waged, and the triumphs of its fields, are exalted beyond all other labors, whether of learning, industry, or benevolence, as the well-spring of Glory. Alas! upon our own heads be the judgment of barbarism which we pronounce upon those that have gone before! At this moment, in this period of light, while to the contented souls of many the noonday sun of civilization seems to be standing still in the heavens, as upon Gideon, the dealings between nations are still governed by the odious rules of brute violence which once predominated between individuals. The Dark Ages have not passed away; Erebus and black Night, born of Chaos, still brood over the earth; nor can we hail the clear day, until the hearts of nations are touched, as the hearts of individual men, and all acknowledge _one and the same Law of Right_.

What has taught you, O man! thus to find glory in an act, performed by a nation, which you condemn as a crime or a barbarism, when committed by an individual? In what vain conceit of wisdom and virtue do you find this incongruous morality? Where is it declared that God, who is no respecter of persons, is a respecter of multitudes? Whence do you draw these partial laws of an impartial God? Man is immortal; but Nations are mortal. Man has a higher destiny than Nations. Can Nations be less amenable to the supreme moral law? Each individual is an atom of the mass. Must not the mass, in its conscience, be like the individuals of which it is composed? Shall the mass, in relations with other masses, do what individuals in relations with each other may not do? As in the physical creation, so in the moral, there is but one rule for the individual and the mass. It was the lofty discovery of Newton, that the simple law which determines the fall of an apple prevails everywhere throughout the Universe,--ruling each particle in reference to every other particle, large or small,--reaching from earth to heaven, and controlling the infinite motions of the spheres. So, with equal scope, another simple law, _the Law of Right_, which binds the individual, binds also two or three when gathered together,--binds conventions and congregations of men,--binds villages, towns, and cities,--binds states, nations, and races,--clasps the whole human family in its sevenfold embrace; nay, more, beyond

"the flaming bounds of place and time, The living throne, the sapphire blaze,"

it binds the angels of Heaven, Cherubim, full of knowledge, Seraphim, full of love; above all, it binds, in self-imposed bonds, a just and omnipotent God. This is the law of which the ancient poet sings, as _Queen alike of mortals and immortals_. It is of this, and not of any earthly law, that Hooker speaks in that magnificent period which sounds like an anthem: "Of Law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world: all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power: both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy." Often quoted, and justly admired, sometimes as the finest sentence of our English speech, this grand declaration cannot be more fitly invoked than to condemn the pretence of one law for the individual and another for the nation.

Stripped of all delusive apology, and tried by that comprehensive law under which nations are set to the bar like common men, War falls from glory into barbarous guilt, taking its place among bloody transgressions, while its flaming honors are turned into shame. Painful to existing prejudice as this may be, we must learn to abhor it, as we abhor similar transgressions by vulgar offender. Every word of reprobation which the enlightened conscience now fastens upon the savage combatant in Trial by Battle, or which it applies to the unhappy being who in murderous duel takes the life of his fellow-man, belongs also to the nation that appeals to War. Amidst the thunders of Sinai God declared, "Thou shalt not kill"; and the voice of these thunders, with this commandment, is prolonged to our own day in the echoes of Christian churches. What mortal shall restrict the application of these words? Who on earth is empowered to vary or abridge the commandments of God? Who shall presume to declare that this injunction was directed, not to nations, but to individuals only,--not to many, but to one only,--that one man shall not kill, but that many may,--that one man shall not slay in Duel, but that a nation may slay a multitude in the duel of War,--that each individual is forbidden to destroy the life of a single human being, but that a nation is not forbidden to cut off by the sword a whole people? We are struck with horror, and our hair stands on end, at the report of a single murder; we think of the soul hurried to final account; we hunt the murderer; and Government puts forth its energies to secure his punishment. Viewed in the unclouded light of Truth, what is War but organized murder,--murder of malice aforethought,--in cold blood,--under sanctions of _impious law_,--through the operation of an extensive machinery of crime,--with innumerable hands,--at incalculable cost of money,--by subtle contrivances of cunning and skill,--or amidst the fiendish atrocities of the savage, brutal assault?

By another commandment, not less solemn, it is declared, "Thou shalt not steal"; and then again there is another forbidding to covet what belongs to others: but all this is done by War, which is stealing and covetousness organized by International Law. The Scythian, undisturbed by the illusion of military glory, snatched a phrase of justice from an acknowledged criminal, when he called Alexander "the greatest robber in the world." And the Roman satirist, filled with similar truth, in pungent words touched to the quick that flagrant, unblushing injustice which dooms to condign punishment the very guilt that in another sphere and on a grander scale is hailed with acclamation:--

"Ille crucem sceleris pretium tulit, his diadema."[55]

[55] Juvenal, Sat. XIII. 105. The same judgment is pronounced by Fénelon in his counsels to royalty, entitled, _Examen de Conscience sur les Devoirs de la Royauté_.

While condemning the ordinary malefactor, mankind, blind to the real character of War, may yet a little longer crown the giant actor with glory; a generous posterity may pardon to unconscious barbarism the atrocities which have been waged; but the _custom_, as organized by existing law, cannot escape the unerring judgment of reason and religion. The outrages, which, under most solemn sanctions, it permits and invokes for professed purposes of justice, cannot be authorized by any human power; and they must rise in overwhelming judgment, not only against those who wield the weapons of Battle, but more still against all who uphold its monstrous Arbitrament.

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When, O, when shall the St. Louis of the Nations arise,--Christian ruler or Christian people,--who, in the Spirit of True Greatness, shall proclaim, that hence-forward forever the great Trial by Battle shall cease,--that "these battles" shall be _abolished_ throughout the Commonwealth of Civilization,--that _a spectacle so degrading_ shall never be allowed again to take place,--and that it is the duty of nations, involving the highest and wisest policy, to establish love between each other, and, in all respects, at all times, with all persons, whether their own people or the people of other lands, to be governed by the sacred _Law of Right_, as between man and man?

IV.

I am now brought to review the obstacles encountered by those who, according to the injunction of St. Augustine, would _make war on War_, and slay it with the word. To some of these obstacles I alluded at the beginning, especially the warlike literature, by which the character is formed. The world has supped so full with battles, that its modes of thought and many of its rules of conduct are incarnadined with blood, as the bones of swine, feeding on madder, are said to become red. Not to be tempted by this theme, I hasten on to expose in succession those various PREJUDICES so powerful still in keeping alive the _custom_ of War, including that greatest prejudice, mighty parent of an infinite brood, at whose unreasoning behest untold sums are absorbed in Preparations for War.

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