Chapter II: Part 2

Writers of genius and learning have defined this arbitrament, and laid down the rules by which it is governed, constituting a complex code, with innumerable subtile provisions regulating the resort to it and the manner in which it must be conducted, called the _Laws of War_. In these quarters we catch our first authentic glimpses of its folly and wickedness. According to Lord Bacon, whose authority is always great, "Wars are no massacres and confusions, but they are the highest _Trials of Right_, when princes and states, that acknowledge no superior upon earth, shall put themselves upon the justice of God _for the deciding of their_ _controversies_ by such success as it shall please him to give on either side."[8] This definition of the English philosopher is adopted by the American jurist, Chancellor Kent, in his Commentaries on American Law.[9] The Swiss publicist, Vattel, whose work is accepted as an important repository of the Law of Nations, defines War as "that state in which a nation _prosecutes its right by force_."[10] In this he very nearly follows the eminent Dutch authority, Bynkershoek, who says, "Bellum est eorum, qui suæ potestatis sunt, _juris sui persequendi ergo_, concertatio per vim vel dolum."[11] Mr. Whewell, who has done so much to illustrate philosophy in all its departments, says, in his recent work on the Elements of Morality and Polity, "Though war is appealed to, because there is no other ULTIMATE TRIBUNAL to which states can have recourse, _it is appealed to for justice_."[12] And in our country, Dr. Lieber says, in a work of learning and sagacious thought, that war is undertaken "in order to obtain right,"[13]--a definition which hardly differs in form from those of Vattel and Bynkershoek.

[8] Observations upon a Libel, etc., Works, Vol. III. p. 40.

[9] Lecture III., Vol. I. p. 45.

[10] Book III. ch. 1, sec. 1.

[11] Quæst. Jur. Pub., Lib. I. cap. 1.

[12] Book VI. ch. 2. art. 1146.

[13] Political Ethics, Book VII. sec. 19, Vol. II. p. 643.

In accordance with these texts, I would now define the evil which I arraign. _War is a public armed contest between nations, under the sanction of International Law, to establish_ JUSTICE _between them_: as, for instance, to determine a disputed boundary, the title to territory, or a claim for damages.

This definition is confined to contests between nations. It is restricted to International War, carefully excluding the question, often agitated, concerning the right of revolution, and that other question, on which friends of peace sometimes differ, the right of personal self-defence. It does not in any way throw doubt on the employment of force in the administration of justice or the conservation of domestic quiet.

It is true that the term _defensive_ is always applied to wars in our day. And it is creditable to the moral sense that nations are constrained to allege this seeming excuse, although its absurdity is apparent in the equal pretensions of the two belligerents, each claiming to act on the defensive. It is unreasonable to suppose that war can arise in the present age, under the sanctions of International Law, except to determine an _asserted right_. Whatever its character in periods of barbarism, or when invoked to repel an incursion of robbers or pirates, "enemies of the human race," war becomes in our day, _among all the nations parties to existing International Law_, simply a mode of litigation, or of deciding a _lis pendens_. It is a mere TRIAL OF RIGHT, an appeal for justice to force. The wars now lowering from Mexico and England are of this character. On the one side, we assert a _title_ to Texas, _which is disputed_; on the other, we assert a _title_ to Oregon, _which is disputed_. Only according to "martial logic," or the "flash language" of a dishonest patriotism, can the Ordeal by Battle be regarded in these causes, on either side, as _Defensive War_. Nor did the threatened war with France in 1834 promise to assume any different character. Its professed object was to obtain the payment of five million dollars,--in other words, to determine by this _Ultimate_ _Tribunal_ a simple question of justice. And going back still farther in our history, the avowed purpose of the war against Great Britain in 1812 was to obtain from the latter power an abandonment of the claim to search American vessels. Unrighteous as was this claim, it is plain that war here was invoked only as a _Trial of Right_.

* * * * *

It forms no part of my purpose to consider individual wars in the past, except so far as necessary by way of example. My aim is higher. I wish to expose an irrational, cruel, and impious _custom_, sanctioned by the Law of Nations. On this account I resort to that supreme law for the definition on which I plant myself in the effort I now make.

After considering, in succession, _first_, the character of war, _secondly_, the miseries it produces, and, _thirdly_, its utter and pitiful insufficiency, as a mode of determining justice, we shall be able to decide, strictly and logically, whether it must not be ranked as crime, from which no true honor can spring to individuals or nations. To appreciate this evil, and the necessity for its overthrow, it will be our duty, _fourthly_, to consider in succession the various prejudices by which it is sustained, ending with that prejudice, so gigantic and all-embracing, at whose command uncounted sums are madly diverted from purposes of peace to preparations for war. The whole subject is infinitely practical, while the concluding division shows how the public treasury may be relieved, and new means secured for human advancement.

I.

First, as to the essential character and root of war, or that part of our nature whence it proceeds. Listen to the voice from the ancient poet of Boeotian Ascra:--

"This is the law for mortals, ordained by the Ruler of Heaven:
Fishes and beasts and birds of the air devour each other;
JUSTICE _dwells not among them: only to_ MAN _has he given_
JUSTICE _the Highest and Best_."[14]

[14] Hesiod, Works and Days, vv. 276-279. Cicero also says, "Neque ulla re longius absumus a natura ferarum, in quibus inesse fortitudinem sæpe dicimus, ut in equis, in leonibus; justitiam, æquitatem, bonitatem non dicimus."--De Offic., Lib. I. cap. 16.

These words of old Hesiod exhibit the distinction between man and beast; but this very distinction belongs to the present discussion. The idea rises to the mind at once, that war is a resort to brute force, where nations strive to overpower each other. Reason, and the divine part of our nature, where alone we differ from the beast, where alone we approach the Divinity, where alone are the elements of that _justice_ which is the professed object of war, are rudely dethroned. For the time men adopt the nature of beasts, emulating their ferocity, like them rejoicing in blood, and with lion's paw clutching an asserted right. Though in more recent days this character is somewhat disguised by the skill and knowledge employed, war is still the same, only more destructive from the genius and intellect which have become its servants. The primitive poets, in the unconscious simplicity of the world's childhood, make this boldly apparent. The heroes of Homer are likened to animals in ungovernable fury, or to things devoid of reason or affection. Menelaus presses his way through the crowd "like a wild beast." Sarpedon is aroused against the Argives, "as a lion against the crooked-horned oxen," and afterwards rushes forward "like a lion nurtured on the mountains, for a long time famished for want of flesh, but whose courage impels him to attack even the well-guarded sheep-fold." In one and the same passage, the great Telamonian Ajax is "wild beast," "tawny lion," and "dull ass"; and all the Greek chiefs, the flower of the camp, are ranged about Diomed, "like raw-eating lions, or wild-boars, whose strength is irresistible." Even Hector, the model hero, with all the virtues of war, is praised as "tamer of horses"; and one of his renowned feats in battle, indicating brute strength only, is where he takes up and hurls a stone which two of our strongest men could not easily lift into a wagon; and he drives over dead bodies and shields, while the axle is defiled by gore, and the guard about the seat is sprinkled from the horses' hoofs and the tires of the wheels;[15] and in that most admired passage of ancient literature, before returning his child, the young Astyanax, to the arms of the wife he is about to leave, this hero of war invokes the gods for a single blessing on the boy's head,--"that he may excel his father, and bring home _bloody spoils_, his enemy being slain, and _so make glad the heart of his mother_!"

[15] Little better than Trojan Hector was the "great" Condé ranging over the field and exulting in the blood of the enemy, which defiled his sword-arm to the elbow.--Mahon, Essai sur la Vie du Grand Condé, p. 60.

From early fields of modern literature, as from those of antiquity, might be gathered similar illustrations, showing the unconscious degradation of the soldier, in vain pursuit of _justice_, renouncing the human character, to assume that of brute. Bayard, the exemplar of chivalry, with a name always on the lips of its votaries, was described by the qualities of beasts, being, according to his admirers, _ram in attack, wild-boar in defence, and wolf in flight_. Henry the Fifth, as represented by our own Shakespeare, in the spirit-stirring appeal to his troops exclaims,--

"When the blast of war blows in our ears,
_Then imitate the action of the tiger_."

This is plain and frank, revealing the true character of war.

I need not dwell on the moral debasement that must ensue. Passions, like so many bloodhounds, are unleashed and suffered to rage. Crimes filling our prisons stalk abroad in the soldier's garb, unwhipped of justice. Murder, robbery, rape, arson, are the sports of this fiendish Saturnalia, when

"The gates of mercy shall be all shut up,
And the fleshed soldier, rough and hard of heart,
In liberty of bloody hand shall range
_With conscience wide as hell_."

By a bold, but truthful touch, Shakespeare thus pictures the foul disfigurement which war produces in man, whose native capacities he describes in those beautiful words: "How noble in reason! how infinite in faculties! in form and moving how express and admirable! in action how like an angel! in apprehension how like a god!" And yet this nobility of reason, this infinitude of faculties, this marvel of form and motion, this nature so angelic, so godlike, are all, under the transforming power of War, lost in the action of the beast, or the license of the fleshed soldier with bloody hand and conscience wide as hell.

II.

The immediate effect of war is to sever all relations of friendship and commerce between the belligerent nations, and every individual thereof, impressing upon each citizen or subject the character of enemy. Imagine this instant change between England and the United States. The innumerable ships of the two countries, the white doves of commerce, bearing the olive of peace, are driven from the sea, or turned from peaceful purposes to be ministers of destruction; the threads of social and business intercourse, so carefully woven into a thick web, are suddenly snapped asunder; friend can no longer communicate with friend; the twenty thousand letters speeded each fortnight from this port alone are arrested, and the human affections, of which they are the precious expression, seek in vain for utterance. Tell me, you with friends and kindred abroad, or you bound to other lands only by relations of commerce, are you ready for this rude separation?

This is little compared with what must follow. It is but the first portentous shadow of disastrous eclipse, twilight usher of thick darkness, covering the whole heavens with a pall, broken only by the lightnings of battle and siege.

Such horrors redden the historic page, while, to the scandal of humanity, they never want historians with feelings kindred to those by which they are inspired. The demon that draws the sword also guides the pen. The favorite chronicler of modern Europe, Froissart, discovers his sympathies in his Prologue, where, with something of apostleship, he announces his purpose, "that the honorable enterprises and noble adventures and feats of arms which happened in the wars of France and England be notably registered and put in perpetual memory," and then proceeds to bestow his equal admiration upon bravery and cunning, upon the courtesy which pardoned as upon the rage which caused the flow of blood in torrents, dwelling with especial delight on "beautiful incursions, beautiful rescues, beautiful feats of arms, and beautiful prowesses"; and wantoning in pictures of cities assaulted, "which, being soon gained by force, were robbed, and men and women and children put to the sword without mercy, while the churches were burnt and violated."[16] This was in a barbarous age. But popular writers in our own day, dazzled by false ideas of greatness, at which reason and humanity blush, do not hesitate to dwell on similar scenes even with rapture and eulogy. The humane soul of Wilberforce, which sighed that England's "bloody laws sent many unprepared into another world," could hail the slaughter of Waterloo, by which thousands were hurried into eternity on the Sabbath he held so holy, as a "splendid victory."[17]

[16] Froissart, Les Chroniques, Ch. 177, 179, Collection de Buchon,
Tom. II. pp. 87, 92.

[17] Life of William Wilberforce, by his Sons, Ch. 30, Vol. IV. pp.
256, 261.

My present purpose is less to judge the historian than to expose the horrors on horrors which he applauds. At Tarragona, above six thousand human beings, almost all defenceless, men and women, gray hairs and infant innocence, attractive youth and wrinkled age, were butchered by the infuriate troops in one night, and the morning sun rose upon a city whose streets and houses were inundated with blood: and yet this is called a "glorious exploit."[18] Here was a conquest by the French. At a later day, Ciudad Rodrigo was stormed by the British, when, in the license of victory, there ensued a savage scene of plunder and violence, while shouts and screams on all sides mingled fearfully with the groans of the wounded. Churches were desecrated, cellars of wine and spirits were pillaged, fire was wantonly applied to the city, and brutal intoxication spread in every direction. Only when the drunken dropped from excess, or fell asleep, was any degree of order restored: and yet the storming of Ciudad Rodrigo is pronounced "one of the most brilliant exploits of the British army."[19] This "beautiful feat of arms" was followed by the storming of Badajoz, where the same scenes were enacted again, with accumulated atrocities. The story shall be told in the words of a partial historian, who himself saw what he eloquently describes. "Shameless rapacity, brutal intemperance, savage lust, cruelty, and murder, shrieks and piteous lamentations, groans, shouts, imprecations, the hissing of fires bursting from the houses, the crashing of doors and windows, and the reports of muskets used in violence, resounded for two days and nights in the streets of Badajoz. On the third, when the city was sacked, when the soldiers were exhausted by their own excesses, the tumult rather subsided than was quelled. The wounded men were then looked to, the dead disposed of."[20] All this is in the nature of confession, for the historian is a partisan of battle.

[18] Alison, Hist. of Europe, Ch. 61, Vol. VIII. p. 237.

[19] Ibid., Ch. 64, Vol. VIII. p. 482.

[20] Napier, Hist. Peninsular War, Book XVI. ch. 5, Vol. IV. p. 431.

The same terrible war affords another instance of atrocities at a siege crying to Heaven. For weeks before the surrender of Saragossa, the deaths daily were from four to five hundred; and as the living could not bury the increasing mass, thousands of carcasses, scattered in streets and court-yards, or piled in heaps at the doors of churches, were left to dissolve in their own corruption, or be licked up by the flames of burning houses. The city was shaken to its foundations by sixteen thousand shells, and the explosion of forty-five thousand pounds of powder in the mines,--while the bones of forty thousand victims, of every age and both sexes, bore dreadful testimony to the unutterable cruelty of War.[21]

[21] Napier, Book V. ch. 3, Vol. II. p. 46.

These might seem pictures from the life of Alaric, who led the Goths to Rome, or of Attila, general of the Huns, called the Scourge of God, and who boasted that the grass did not grow where his horse had set his foot; but no! they belong to our own times. They are portions of the wonderful, but wicked, career of him who stands forth the foremost representative of worldly grandeur. The heart aches, as we follow him and his marshals from field to field of Satanic glory,[22] finding everywhere, from Spain to Russia, the same carnival of woe. The picture is various, yet the same. Suffering, wounds, and death, in every form, fill the terrible canvas. What scene more dismal than that of Albuera, with its horrid piles of corpses, while all night the rain pours down, and river, hill, and forest, on each side, resound with the cries and groans of the dying?[23] What scene more awfully monumental than Salamanca, where, long after the great battle, the ground, strewn with fragments of casques and cuirasses, was still white with the skeletons of those who fell?[24] What catalogue of horrors more complete than the Russian campaign? At every step is war, and this is enough: soldiers black with powder; bayonets bent with the violence of the encounter; the earth ploughed with cannon-shot; trees torn and mutilated; the dead and dying; wounds and agony; fields covered with broken carriages, outstretched horses, and mangled bodies; while disease, sad attendant on military suffering, sweeps thousands from the great hospitals, and the multitude of amputated limbs, which there is no time to destroy, accumulate in bloody heaps, filling the air with corruption. What tongue, what pen, can describe the bloody havoc at Borodino, where, between rise and set of a single sun, one hundred thousand of our fellow-men, equalling in number the whole population of this city, sank to earth, dead or wounded?[25] Fifty days after the battle, no less than thirty thousand are found stretched where their last convulsions ended, and the whole plain is strewn with half-buried carcasses of men and horses, intermingled with garments dyed in blood, and bones gnawed by dogs and vultures.[26] Who can follow the French army in dismal retreat, avoiding the spear of the pursuing Cossack only to sink beneath the sharper frost and ice, in a temperature below zero, on foot, without shelter for the body, famishing on horse-flesh and a miserable compound of rye and snow-water? With a fresh array, the war is upheld against new forces under the walls of Dresden; and as the Emperor rides over the field of battle--after indulging the night before in royal supper with the Saxon king--he sees ghastly new-made graves, with hands and arms projecting, stark and stiff, above the ground; and shortly afterwards, when shelter is needed for the troops, the order to occupy the Hospitals for the Insane is given, with the words, "Turn out the mad."[27]

[22] A living poet of Italy, who will be placed by his prose among the great names of his country's literature, in a remarkable ode which he has thrown on the urn of Napoleon invites posterity to judge whether his career of battle was True Glory.

"Fu vera gloria? Ai posteri L'ardua sentenza."--MANZONI, _Il Cinque Maggio_.

When men learn to appreciate moral grandeur, the easy sentence will be rendered.

[23] Napier, Book XII. ch. 7, Vol. III. p. 543.

[24] Alison, Ch. 64, Vol. VIII. p. 589.

[25] Ibid., Ch. 67, Vol. VIII. p. 871.

[26] Ibid., Ch. 68, Vol. VIII. p. 930. Ségur, Hist. de Napoléon, Liv. IX. ch. 7, Tom. II. p. 153. Labaume, Rel. de la Campagne de Russie, Liv. VII.

[27] Alison, Ch. 72, Vol. IX. pp. 469, 553.

* * * * *

Here I might close this scene of blood. But there is one other picture of the atrocious, though natural, consequences of war, occurring almost within our own day, that I would not omit. Let me bring to your mind Genoa, called the Superb, City of Palaces, dear to the memory of American childhood as the birthplace of Christopher Columbus, and one of the spots first enlightened by the morning beams of civilization, whose merchants were princes, and whose rich argosies, in those early days, introduced to Europe the choicest products of the East, the linen of Egypt, the spices of Arabia, and the silks of Samarcand. She still sits in queenly pride, as she sat then,--her mural crown studded with towers,--her churches rich with marble floors and rarest pictures,--her palaces of ancient doges and admirals yet spared by the hand of Time,--her close streets thronged by a hundred thousand inhabitants,--at the foot of the Apennines, as they approach the blue and tideless waters of the Mediterranean Sea,--leaning her back against their strong mountain-sides, overshadowed by the foliage of the fig-tree and the olive, while the orange and the lemon with pleasant perfume scent the air where reigns perpetual spring. Who can contemplate such a city without delight? Who can listen to the story of her sorrows without a pang?

At the opening of the present century, the armies of the French Republic, after dominating over Italy, were driven from their conquests, and compelled, with shrunken forces, to find shelter under Massena, within the walls of Genoa. Various efforts were made by the Austrian general, aided by bombardment from the British fleet, to force the strong defences by assault. At length the city was invested by a strict blockade. All communication with the country was cut off, while the harbor was closed by the ever-wakeful British watch-dogs of war. Besides the French troops, within the beleaguered and unfortunate city are the peaceful, unoffending inhabitants. Provisions soon become scarce; scarcity sharpens into want, till fell Famine, bringing blindness and madness in her train, rages like an Erinnys. Picture to yourselves this large population, not pouring out their lives in the exulting rush of battle, but wasting at noonday, daughter by the side of mother, husband by the side of wife. When grain and rice fail, flaxseed, millet, cocoa, and almonds are ground by hand-mills into flour, and even bran, baked with honey, is eaten, less to satisfy than to deaden hunger. Before the last extremities, a pound of horse-flesh is sold for thirty-two cents, a pound of bran for thirty cents, a pound of flour for one dollar and seventy-five cents. A single bean is soon sold for two cents, and a biscuit of three ounces for two dollars and a quarter, till finally none can be had at any price. The wretched soldiers, after devouring the horses, are reduced to the degradation of feeding on dogs, cats, rats, and worms, which are eagerly hunted in cellars and sewers. "Happy were now," exclaims an Italian historian, "not those who lived, but those who died!" The day is dreary from hunger,--the night more dreary still, from hunger with delirious fancies. They now turn to herbs,--dock, sorrel, mallows, wild succory. People of every condition, with women of noble birth and beauty, seek upon the slope of the mountain within the defences those aliments which Nature designed solely for beasts. Scanty vegetables, with a scrap of cheese, are all that can be afforded to the sick and wounded, those sacred stipendiaries of human charity. In the last anguish of despair, men and women fill the air with groans and shrieks, some in spasms, convulsions, and contortions, yielding their expiring breath on the unpitying stones of the street,--alas! not more unpitying than man. Children, whom a dead mother's arms had ceased to protect, orphans of an hour, with piercing cries, supplicate in vain the compassion of the passing stranger: none pity or aid. The sweet fountains of sympathy are all closed by the selfishness of individual distress. In the general agony, some precipitate themselves into the sea, while the more impetuous rush from the gates, and impale their bodies on the Austrian bayonets. Others still are driven to devour their shoes and the leather of their pouches; and the horror of human flesh so far abates, that numbers feed like cannibals on the corpses about them.[28]

[28] This account is drawn from the animated sketches of Botta (Storia d' Italia dal 1789 al 1814, Tom. III. Lib. 19), Alison (History of Europe, Vol. IV. ch. 30), and Arnold (Modern History, Lect. IV.). The humanity of the last is particularly aroused to condemn this most atrocious murder of innocent people, and, as a sufficient remedy, he suggests a modification of the Laws of War, permitting non-combatants to withdraw from a blockaded town! In this way, indeed, they may be spared a languishing death by starvation; but they must desert firesides, pursuits, all that makes life dear, and become homeless exiles,--a fate little better than the former. It is strange that Arnold's pure soul and clear judgment did not recognize the truth, that the whole custom of war is unrighteous and unlawful, and that the horrors of this siege are its natural consequence. Laws of War! Laws in what is lawless! rules of wrong! There can be only _one Law of War_,--that is, the great law which pronounces it unwise, unjust, and unchristian.

At this stage the French general capitulated, claiming and receiving what are called "the honors of war,"--but not before twenty thousand innocent persons, old and young, women and children, having no part or interest in the contest, had died the most horrible of deaths. The Austrian flag floated over captured Genoa but a brief span of time; for Bonaparte had already descended like an eagle from the Alps, and in nine days afterwards, on the plains of Marengo, shattered the Austrian empire in Italy.

* * * * *

But wasted lands, famished cities, and slaughtered armies are not all that is contained in "the purple testament of bleeding war." Every soldier is connected with others, as all of you, by dear ties of kindred, love, and friendship. He has been sternly summoned from the embrace of family. To him there is perhaps an aged mother, who fondly hoped to lean her bending years on his more youthful form; perhaps a wife, whose life is just entwined inseparably with his, now condemned to wasting despair; perhaps sisters, brothers. As he falls on the field of war, must not all these rush with his blood? But who can measure the distress that radiates as from a bloody sun, penetrating innumerable homes? Who can give the gauge and dimensions of this infinite sorrow? Tell me, ye who feel the bitterness of parting with dear friends and kindred, whom you watch tenderly till the last golden sands are run out and the great hour-glass is turned, what is the measure of your anguish? Your friend departs, soothed by kindness and in the arms of Love: the soldier gasps out his life with no friend near, while the scowl of Hate darkens all that he beholds, darkens his own departing soul. Who can forget the anguish that fills the bosom and crazes the brain of Lenore, in the matchless ballad of Bürger, when seeking in vain among returning squadrons for her lover left dead on Prague's ensanguined plain? But every field of blood has many Lenores. All war is full of desolate homes, as is vividly pictured by a master poet of antiquity, whose verse is an argument.

"But through the bounds of Grecia's land,
Who sent her sons for Troy to part,
See mourning, with much suffering heart,
On each man's threshold stand,
On each sad hearth in Grecia's land.
Well may her soul with grief be rent;
She well remembers whom she sent,
She sees them not return:
Instead of men, to each man's home
Urns and ashes only come,
And the armor which they wore,--
Sad relics to their native shore.
For Mars, the barterer of the lifeless clay,
Who sells for gold the slain,
_And holds the scale, in battle's doubtful day,
High balanced o'er the plain_,
From Ilium's walls for men returns
Ashes and sepulchral urns,--
Ashes wet with many a tear,
Sad relics of the fiery bier.
Round the full urns the general groan
Goes, as each their kindred own:
And one that 'mid the armed throng
He sunk in glory's slaughtering tide,
And for another's consort died.

* * * * *

Others they mourn whose monuments stand
By Ilium's walls on foreign strand;
Where they fell in beauty's bloom,
There they lie in hated tomb,
Sunk beneath the massy mound,
In eternal chambers bound."[29]

[29] Agamemnon of Æschylus: _Chorus_. This is from the beautiful
translation by John Symmons.

III.

But all these miseries are to no purpose. War is utterly ineffectual to secure or advance its professed object. The wretchedness it entails contributes to no end, helps to establish no right, and therefore in no respect determines _justice_ between the contending nations.

The fruitlessness and vanity of war appear in the great conflicts by which the world has been lacerated. After long struggle, where each nation inflicts and receives incalculable injury, peace is gladly obtained on the basis of the condition before the war, known as the _status ante bellum_. I cannot illustrate this futility better than by the familiar example--humiliating to both countries--of our last war with Great Britain, where the professed object was to obtain a renunciation of the British claim, so defiantly asserted, to impress our seamen. To overturn this injustice the Arbitrament of War was invoked, and for nearly three years the whole country was under its terrible ban. American commerce was driven from the seas; the resources of the land were drained by taxation; villages on the Canadian frontier were laid in ashes; the metropolis of the Republic was captured; while distress was everywhere within our borders. Weary at last with this rude trial, the National Government appointed commissioners to treat for peace, with these specific instructions: "Your first duty will be to conclude a peace with Great Britain; and you are authorized to do it, _in case_ you obtain a satisfactory stipulation against impressment, one which shall secure under our flag protection to the crew.... If this encroachment of Great Britain is not provided against, _the United States have appealed to arms in vain_."[30] Afterwards, finding small chance of extorting from Great Britain a relinquishment of the unrighteous claim, and foreseeing from the inveterate prosecution of the war only an accumulation of calamities, the National Government directed the negotiators, in concluding a treaty, to "_omit any stipulation on the subject of impressment_."[31] These instructions were obeyed, and the treaty that restored to us once more the blessings of peace, so rashly cast away, but now hailed with intoxication of joy, contained no allusion to impressment, nor did it provide for the surrender of a single American sailor detained in the British navy. Thus, by the confession of our own Government, "the United States _had appealed to arms_ IN VAIN."[32] These important words are not mine; they are words of the country.

[30] Mr. Monroe to Commissioners, April 15, 1813: American State
Papers, Vol. VIII. pp. 577, 578.

[31] Mr. Monroe to Commissioners, June 27, 1814: Ibid., Vol. VIII. p.
593.

[32] Mr. Jefferson, in more than one letter, declares the peace _an armistice only_, "because no security is provided against the impressment of our seamen."--Letter to Crawford, Feb. 11, 1815; to Lafayette, Feb. 14, 1815: Works, Vol. VI. pp. 420, 427.

All this is the natural result of an appeal to war for the determination of _justice_. Justice implies the exercise of the judgment. Now war not only supersedes the judgment, but delivers over the pending question to superiority of _force_, or to _chance_.

Superior force may end in conquest; this is the natural consequence; but it cannot adjudicate any right. We expose the absurdity of its arbitrament, when, by a familiar phrase of sarcasm, we deride _the right of the strongest_,--excluding, of course, all idea of right, except that of the lion as he springs upon a weaker beast, of the wolf as he tears in pieces the lamb, of the vulture as he devours the dove. The grossest spirits must admit that this is not justice.

But the battle is not always to the strong. Superiority of force is often checked by the proverbial contingencies of war. Especially are such contingencies revealed in rankest absurdity, where nations, as is the acknowledged _custom_, without regard to their respective forces, whether weaker or stronger, voluntarily appeal to this mad umpirage. Who beforehand can measure the currents of the heady fight? In common language, we confess the "chances" of battle; and soldiers devoted to this harsh vocation yet call it a "game." The Great Captain of our age, who seemed to drag victory at his chariot-wheels, in a formal address to his officers, on entering Russia, says, "In war, _fortune_ has an equal share with ability in success."[33] The famous victory of Marengo, accident of an accident, wrested unexpectedly at close of day from a foe at an earlier hour successful, taught him the uncertainty of war. Afterwards, in bitterness of spirit, when his immense forces were shivered, and his triumphant eagles driven back with broken wing, he exclaimed, in that remarkable conversation recorded by his secretary, Fain,--"Well, this is War! High in the morning,--low enough at night! From a triumph to a fall is often but a step."[34] The same sentiment is repeated by the military historian of the Peninsular campaigns, when he says, "_Fortune_ always asserts her supremacy in war; and often from a slight mistake such disastrous consequences flow, that, in every age and every nation, the _uncertainty_ of arms has been proverbial."[35] And again, in another place, considering the conduct of Wellington, the same military historian, who is an unquestionable authority, confesses, "A few hours' delay, an accident, a turn of fortune, and he would have been foiled. Ay! but this is War, _always dangerous and uncertain_, an ever-rolling wheel, and armed with scythes."[36] And will intelligent man look for justice to an ever-rolling wheel armed with scythes?

[33] Alison, Ch. 67, Vol. VIII. p. 815.

[34] Alison, Ch. 72, Vol. IX. p. 497.

[35] Napier, Book XXIV. ch. 6, Vol. VI. p. 687.

[36] Ibid., Book XVI. ch. 7, Vol. IV. p. 476.

Chance is written on every battle-field. Discerned less in the conflict of large masses than in that of individuals, it is equally present in both. How capriciously the wheel turned when the fortunes of Rome were staked on the combat between the Horatii and Curiatii!--and who, at one time, augured that the single Horatius, with two slain brothers on the field, would overpower the three living enemies? But this is not alone. In all the combats of history, involving the fate of individuals or nations, we learn to revolt at the frenzy which carries questions of property, freedom, or life to a judgment so uncertain and senseless. The humorous poet fitly exposes its hazards, when he says,--

"that a turnstile is more certain
Than, in events of war, Dame Fortune."[37]

[37] Hudibras, Part I. Canto 3, vv. 23, 24.

During the early modern centuries, and especially in the moral night of the Dark Ages, the practice prevailed extensively throughout Europe of invoking this adjudication for controversies, whether of individuals or communities. I do not dwell on the custom of Private War, though it aptly illustrates the subject, stopping merely to echo that joy which, in a time of ignorance, before this arbitrament yielded gradually to the ordinances of monarchs and an advancing civilization, hailed its temporary suspension as _The Truce of God_. But this beautiful term, most suggestive, and historically important, cannot pass without the attention which belongs to it. Such a truce is still an example, and also an argument; but it is for nations. Here is something to be imitated; and here also is an appeal to the reason. If individuals or communities once recognized the Truce of God, why not again? And why may not its benediction descend upon nations also? Its origin goes back to the darkest night. It was in 1032 that the Bishop of Aquitaine announced the appearance of an angel with a message from Heaven, engaging men to cease from war and be reconciled. The people, already softened by calamity and disposed to supernatural impressions, hearkened to the sublime message, and consented. From sunset Thursday to sunrise Monday each week, also during Advent and Lent, and at the great festivals, all effusion of blood was interdicted, and no man could molest his adversary. Women, children, travellers, merchants, laborers, were assured perpetual peace. Every church was made an asylum, and, by happy association, the plough also sheltered from peril all who came to it. This respite, justly regarded as marvellous, was hailed as the Truce of God. Beginning in one neighborhood, it was piously extended until it embraced the whole kingdom, and then, by the authority of the Pope, became coextensive with Christendom, while those who violated it were put under solemn ban. As these things passed, bishops lifted their crosses, and the people in their gladness cried, _Peace! Peace!_[38] Originally too limited in operation and too short in duration, the Truce of God must again be proclaimed for all places and all times,--proclaimed to all mankind and all nations, without distinction of person or calling, on all days of the week, without distinction of sacred days or festivals, and with one universal asylum, not merely the church and the plough, but every place and thing.

[38] Robertson, Hist. of Charles V., Vol. I. note 21. Semichon, La Paix
et la Trève de Dieu, Tom. II. pp. 35, 53.

* * * * *

From Private Wars, whose best lesson is the Truce of God, by which for a time they were hushed, I come to the _Judicial Combat_, or Trial by Battle, where, as in a mirror, we behold the barbarism of War, without truce of any kind. Trial by Battle was a formal and legitimate mode of deciding controversies, principally between individuals. Like other ordeals, by walking barefoot and blindfold among burning ploughshares, by holding hot iron, by dipping the hand in hot water or hot oil, and like the great Ordeal of War, it was a presumptuous appeal to Providence, under the apprehension and hope that Heaven would give the victory to him who had the right. Its object was the very object of War,--_the determination of Justice_. It was sanctioned by Municipal Law as an arbitrament for individuals, as War, to the scandal of civilization is still sanctioned by International Law as an arbitrament for nations. "Men," says the brilliant Frenchman, Montesquieu, "subject even their prejudices to rules"; and Trial by Battle, which he does not hesitate to denounce as a "monstrous usage," was surrounded by artificial regulations of multifarious detail, constituting an extensive system, determining how and when it should be waged, as War is surrounded by a complex code, known as the Laws of War. "Nothing," says Montesquieu again, "could be more contrary to good sense, but, once established, it was executed with a certain prudence,"--which is equally true of War. No battle-field for an army is selected with more care than was the field for Trial by Battle. An open space in the neighborhood of a church was often reserved for this purpose. At the famous Abbey of Saint-Germain-des-Prés, in Paris, there was a tribune for the judges, overlooking the adjoining meadow, which served for the field.[39] The combat was inaugurated by a solemn mass, according to a form still preserved, _Missa pro Duello_, so that, in ceremonial and sanction, as in the field, the Church was constantly present. Champions were hired, as soldiers now.[40]

[39] Sismondi, Hist. des Français, Part. V. ch. 9, Tom. X. p. 514.

[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.

* * * * *

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.