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.
* * * * *
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.
* * * * *
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!
* * * * *
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.
* * * * *
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.
* * * * *
1. One of the most important is the prejudice from _belief in its
necessity_. When War is called a necessity, it is meant, of course,
that its object can be attained in no other way. Now I think it has
already appeared, with distinctness approaching demonstration, that
the professed object of War, which is justice between nations, is in
no respect promoted by War,--that force is not justice, nor in any
way conducive to justice,--that the eagles of victory are the emblems
of successful force only, and not of established right. Justice is
obtained solely by the exercise of reason and judgment; but these
are silent in the din of arms. Justice is without passion; but War
lets loose all the worst passions, while "Chance, high arbiter, more
embroils the fray." The age is gone when a nation within the enchanted
circle of civilization could make war upon its neighbors for any
declared purpose of booty or vengeance. It does "nought in hate, but
all in _honor_." Such is the present rule. Professions of tenderness
mingle with the first mutterings of strife. As if conscience-struck
at the criminal abyss into which they are plunging, each of the
great litigants seeks to fix upon the other some charge of hostile
aggression, or to set up the excuse of defending some asserted right,
some Texas, some Oregon. Each, like Pontius Pilate, vainly washes its
hands of innocent blood, and straightway allows a crime at which the
whole heavens are darkened, and two kindred countries are severed, as
the vail of the Temple was rent in twain.
Proper modes for the determination of international disputes are
Negotiation, Mediation, Arbitration, and a Congress of Nations,--all
practicable, and calculated to secure peaceful justice. Under existing
Law of Nations these may be employed at any time. _But the very law
sanctioning War may be changed_, as regards two or more nations by
treaty between them, and as regards the body of nations by general
consent. If nations can agree in solemn provisions of International Law
to establish War as Arbiter of Justice, they can also agree to abolish
this arbitrament, and to establish peaceful substitutes,--precisely
as similar substitutes are established by Municipal Law to determine
controversies among individuals. A system of Arbitration may be
instituted, or a Congress of Nations, charged with the high duty of
organizing an _Ultimate Tribunal_, instead of "these battles." To do
this, the will only is required.
Let it not be said, then, that war is a _necessity_; and may our
country aspire to the glory of taking the lead in disowning the
barbarous system of LYNCH LAW among nations, while it proclaims
peaceful _substitutes_! Such a glory, unlike the earthly fame of
battle, will be immortal as the stars, dropping perpetual light upon
the souls of men.
* * * * *
2. Another prejudice is founded on _the practice of nations_, past and
present. There is no crime or enormity in morals which may not find
the support of human example, often on an extended scale. But it will
not be urged in our day that we are to look for a standard of duty
in the conduct of vain, fallible, mistaken man. Not by any subtile
alchemy can man transmute Wrong into Right. Because War is according
to the practice of the world, it does not follow that it is right.
For ages the world worshipped false gods,--not less false because all
bowed before them. At this moment the prevailing numbers of mankind
are heathen; but heathenism is not therefore true. Once it was the
practice of nations to slaughter prisoners of war; but the Spirit of
War recoils now from this bloody sacrifice. By a perverse morality
in Sparta, theft, instead of being a crime, was, like War, dignified
into an art and accomplishment; like War, it was admitted into the
system of youthful education; and, like War, it was illustrated by an
instance of unconquerable firmness, barbaric counterfeit of virtue. The
Spartan youth, with the stolen fox beneath his robe eating into his
bowels, is an example of fortitude not unlike that so often admired
in the soldier. Other illustrations crowd upon the mind; but I will
not dwell upon them. We turn with disgust from Spartan cruelty and
the wolves of Taygetus,--from the awful cannibalism of the Feejee
Islands,--from the profane rites of innumerable savages,--from the
crushing Juggernaut,--from the Hindoo widow on her funeral pyre,--from
the Indian dancing at the stake; but had not all these, like War, the
sanction of established usage?
Often is it said that we need not be wiser than our fathers. Rather
strive to excel our fathers. What in them was good imitate; but do not
bind ourselves, as in chains of Fate, by their imperfect example. In
all modesty be it said, we have lived to little purpose, if we are not
wiser than the generations that have gone before. It is the exalted
distinction of man that he is progressive,--that his reason is not
merely the reason of a single human being, but that of the whole human
race, in all ages from which knowledge has descended, in all lands
from which it has been borne away. We are the heirs to an inheritance
grandly accumulating from generation to generation, with the superadded
products of other lands. The child at his mother's knee is now taught
the orbits of the heavenly bodies,
"Where worlds on worlds compose one Universe,"
the nature of this globe, the character of the tribes by which it is
covered, and the geography of countries, to an extent far beyond the
ken of the most learned in other days. It is true, therefore, that
antiquity is the real infancy of man. Then is he immature, ignorant,
wayward, selfish, childish, finding his chief happiness in lowest
pleasures, unconscious of the higher. The animal reigns supreme, and
he seeks contest, war, blood. Already he has lived through infancy and
childhood. Reason and the kindlier virtues, repudiating and abhorring
force, now bear sway. The time has come for temperance, moderation,
peace. We are the true ancients. The single lock on the battered
forehead of old Time is thinner now than when our fathers attempted
to grasp it; the hour-glass has been turned often since; the scythe is
heavier laden with the work of death.
Let us not, then, take for a lamp to our feet the feeble taper that
glimmers from the sepulchre of the Past. Rather hail that ever-burning
light above, in whose beams is the brightness of noonday.
* * * * *