But no classical authority is needed for this designation. War, as
conducted under International Law, between two organized nations,
is in all respects a duel, according to the just signification of
this word,--differing from that between two individuals only in
the number of combatants. The variance is of proportion merely,
each nation being an individual who appeals to the sword as
Arbiter; and in each case the combat is subject to rules
constituting a code by which the two parties are bound. For long
years before civilization prevailed, the code governing the duel
between individuals was as fixed and minute as that which governs
the larger duel between nations, and the duel itself was simply a
mode of deciding questions between individuals. In presenting this
comparison I expose myself to criticism only from those who have
not considered this interesting subject in the light of history
and of reason. The parallel is complete. Modern war is the duel of
the Dark Ages, magnified, amplified, extended so as to embrace
nations; nor is it any less a duel because the combat is quickened
and sustained by the energies of self-defence, or because, when a
champion falls and lies on the ground, he is brutally treated. An
authentic instance illustrates such a duel; and I bring before you
the very pink of chivalry, the Chevalier Bayard, "the knight
without fear and without reproach," who, after combat in a chosen
field, succeeded by a feint in driving his weapon four fingers
deep into the throat of his adversary, and then, rolling with him,
gasping and struggling, on the ground, thrust his dagger into the
nostrils of the fallen victim, exclaiming, "Surrender, or you are
a dead man!"--a speech which seemed superfluous; for the second
cried out, "He is dead already; you have conquered." Then did
Bayard, brightest among the Sons of War, drag his dead enemy from
the field, crying, "Have I done enough?" [Footnote: La tresjoyeuse,
plaisante et recreative Hystoire, composee par le Loyal Serviteur,
des Faiz, Gestes, Triumphes et Prouesses du Bon Chevalier
sans Paour et sans Reprouche, le Gentil Seigneur de Bayart:
Petitot, Collection des Memoires relatifs a l'Histoire de France,
Tom. XV. pp. 241, 242.] Now, because the brave knight saw
fit to do these things, the combat was not changed in original
character. It was a duel at the beginning and at the end. Indeed,
the brutality with which it closed was the natural incident of a
duel. A combat once begun opens the way to violence, and the
conqueror too often surrenders to the Evil Spirit, as Bayard in
his unworthy barbarism.
In likening war between nations to the duel, I follow not only
reason, but authority also. No better lawyer can be named in the
long history of the English bar than John Selden, whose learning
was equalled only by his large intelligence. In those conversations
which under the name of "Table-Talk" continue still to instruct,
the wise counsellor, after saying that the Church allowed
the duel anciently, and that in the public liturgies there were
prayers appointed for duellists to say, keenly inquires, "But
whether is this lawful?" And then he answers, "If you grant any
war lawful, I make no doubt but to convince it." [Footnote: Table-
Talk, ed. Singer, London, 1856, p. 47,--_Duel_.] Selden
regarded the simple duel and the larger war as governed by the
same rule. Of course the exercise of force in the suppression of
rebellion, or in the maintenance of laws, stands on a different
principle, being in its nature a constabulary proceeding, which
cannot be confounded with the duel. But my object is not to
question the lawfulness of war; I would simply present an image,
enabling you to see the existing war in its true character.
The duel in its simplest form is between two individuals. In early
ages it was known sometimes as the Judicial Combat, and sometimes
as Trial by Battle. Not only points of honor, but titles to land,
grave questions of law, and even the subtilties of theology, were
referred to this arbitrament, [Footnote: Robertson, History of the
Reign of Charles V.: View of the Progress of Society in Europe,
Section I. Note XXII.]--just as now kindred issues between nations
are referred to Trial by Battle; and the early rules governing the
duel are reproduced in the Laws of War established by nations to
govern the great Trial by Battle. Ascending from the individual to
corporations, guilds, villages, towns, counties, provinces, we
find that for a long period each of these bodies exercised what
was called "the Right of War." The history of France and Germany
shows how reluctantly this mode of trial yielded to the forms of
reason and order. France, earlier than Germany, ordained "Trial by
Proofs," and eliminated the duel from judicial proceedings, this
important step being followed by the gradual amalgamation of
discordant provinces in the powerful unity of the Nation,----so
that Brittany and Normandy, Franche-Comte and Burgundy, Provence
and Dauphiny, Gascony and Languedoc, with the rest, became the
United States of France, or, if you please, France. In Germany the
change was slower; and here the duel exhibits its most curious
instances. Not only feudal chiefs, but associations of tradesmen
and of domestics sent defiance to each other, and sometimes to
whole cities, on pretences trivial as those which have been the
occasion of defiance from nation to nation. There still remain to
us Declarations of War by a Lord of Frauenstein against the free
city of Frankfort, because a young lady of the city refused to
dance with his uncle,--by the baker and domestics of the Margrave
of Baden against Esslingen, Reutlingen, and other imperial
cities,--by the baker of the Count Palatine Louis against the
cities of Augsburg, Ulm, and Rottweil,--by the shoe-blacks of the
University of Leipsic against the provost and other members,--and
by the cook of Eppstein, with his scullions, dairy-maids, and
dish-washers, against Otho, Count of Solms. [Footnote: Coxe,
History of the House of Austria. (London, 1820) Ch. XIX., Vol. I.
p. 378.] This prevalence of the duel aroused the Emperor
Maximilian, who at the Diet of Worms put forth an ordinance
abolishing the right or liberty of Private War, and instituting a
Supreme Tribunal for the determination of controversies without
appeal to the duel, and the whole long list of duellists, whether
corporate or individual, including nobles, bakers, shoe-blacks,
and cooks, was brought under its pacific rule. Unhappily the
beneficent reform stopped half-way, and here Germany was less
fortunate than France. The great provinces were left in the
enjoyment of a barbarous independence, with the "right" to fight
each other. The duel continued their established arbiter, until at
last, in 1815, by the Act of Union constituting the Confederation
or United States of Germany, each sovereignty gave up the right of
war with its confederates, setting an example to the larger
nations. The terms of this important stipulation, marking a stage
in German unity, were as follows:--
"The members of the Confederation further bind themselves under no
pretext to make war upon one another, or to pursue their
differences by force of arms, but to submit them to the Diet."
[Footnote: Acte pour la Constitution federative de l'Allemagne du
8 Juin 1815, Art. 11: Archives Diplomatiques, (Stuttgart et
Tubingen, 1821-36,) Vol. IV. p. 15.]
Better words could not be found for the United States of Europe,
in the establishment of that Great Era when the Duel shall cease
to be the recognized Arbiter of Nations.
With this exposition, which I hope is not too long, it is easy to
see how completely a war between two nations is a duel,--and, yet
further, how essential it is to that assured peace which
civilization requires, that the duel, which is no longer tolerated
as arbiter between individuals, between towns, between counties,
between provinces, should cease to be tolerated as such between
nations. Take our own country, for instance. In a controversy
between towns, the local law provides a judicial tribunal; so also
in a controversy between counties. Ascending still higher, suppose
a controversy between two States of our Union; the National
Constitution establishes a judicial tribunal, being the Supreme
Court of the United States. But at the next stage there is a
change. Let the controversy arise between two nations, and the
Supreme Law, which is the Law of Nations, establishes, not a
judicial tribunal, but the duel, as arbiter. What is true of our
country is true of other countries where civilization has a
foothold, and especially of France and Germany. The duel, though
abolished as arbiter at home, is continued as arbiter abroad. And
since it is recognized by International Law and subjected to a
code, it is in all respects an Institution. War is an institution
sanctioned by International Law, as Slavery, wherever it exists,
is an institution sanctioned by Municipal Law. But this
institution is nothing but the duel of the Dark Ages, prolonged
into this generation, and showing itself in portentous barbarism.