But the Law of Nations,—and here is a point of infinite importance to the clear understanding of the subject,—while anticipating and providing for controversies between nations, recognizes and establishes War as final Arbiter. It distinctly says to nations, "If you cannot agree together, then stake your cause upon Trial by Battle." The mode of trial thus recognized and established has its own procedure, with rules and regulations, under the name of Laws of War, constituting a branch of International Law. "The Laws of War," says Dr. Paley, "are part of the Law of Nations, and founded, as to their authority, upon the same principle with the rest of that code, namely, upon the fact of their being established, no matter when or by whom."[291] Nobody doubts that the Laws of War are established by nations.
It is not uncommon to speak of the practice of War, or the custom of War,—a term adopted by that devoted friend of Peace, the late Noah Worcester. Its apologists and expounders have called it "a judicial trial,"—"one of the highest trials of right,"—"a process of justice,"—"an appeal for justice,"—"a mode of obtaining rights,"—"a prosecution of rights by force,"—"a mode of condign punishment." I prefer to characterize it as an Institution, established by the Commonwealth of Nations as Arbiter of Justice. As Slavery is an Institution, growing out of local custom, sanctioned, defined, and established by Municipal Law, so War is an Institution, growing out of general custom, sanctioned, defined, and established by the Law of Nations.
Only when we contemplate War in this light can we fully perceive its combined folly and wickedness. Let me bring this home to your minds. Boston and Cambridge are adjoining towns, separated by the River Charles. In the event of controversy between these different jurisdictions, the Municipal Law establishes a judicial tribunal, and not War, as arbiter. Ascending higher, in the event of controversy between two different counties, as between Essex and Middlesex, the same Municipal Law establishes a judicial tribunal, and not War, as arbiter. Ascending yet higher, in the event of controversy between two different States of our Union, the Constitution establishes a judicial tribunal, the Supreme Court of the United States, and not War, as arbiter. But now mark: at the next stage there is a change of arbiter. In the event of controversy between two different States of the Commonwealth of Nations, the supreme law establishes, not a judicial tribunal, but War, as arbiter. War is the institution established for the determination of justice between nations.
Provisions of the Municipal Law of Massachusetts, and of the National Constitution, are not vain words. To all familiar with our courts it is well known that suits between towns, and likewise between counties, are often entertained and satisfactorily adjudicated. The records of the Supreme Court of the United States show also that States of the Union habitually refer important controversies to this tribunal. Before this high court is now pending an action of the State of Missouri against the State of Iowa, founded on a question of boundary, where the former claims a section of territory—larger than many German principalities—extending along the whole northern border of Missouri, with several miles of breadth, and comprising more than two thousand square miles. Within a short period this same tribunal has decided a similar question between our own State of Massachusetts and our neighbor, Rhode Island,—the latter pertinaciously claiming a section of territory, about three miles broad, on a portion of our southern frontier.
Suppose that in these different cases between towns, counties, states, War had been established by the supreme law as arbiter; imagine the disastrous consequences; picture the imperfect justice which must have been the end and fruit of such a contest; and while rejoicing that in these cases we are happily relieved from an alternative so wretched and deplorable, reflect that on a larger theatre, where grander interests are staked, in the relations between nations, under the solemn sanction of the Law of Nations, War is established as Arbiter of Justice. Reflect also that a complex and subtile code, known as Laws of War, is established to regulate the resort to this arbiter.
Recognizing the irrational and unchristian character of War as established arbiter between towns, counties, and states, we learn to condemn it as established arbiter between nations. If wrong in one case, it must be wrong in the other. But there is another parallel supplied by history, from which we may form a yet clearer idea: I refer to the system of Private Wars, or, more properly, Petty Wars, which darkened even the Dark Ages. This must not be confounded with the Trial by Battle, although the two were alike in recognizing the sword as Arbiter of Justice. The right to wage war (le droit de guerroyer) was accorded by the early Municipal Law of European States, particularly of the Continent, to all independent chiefs, however petty, but not to vassals; precisely as the right to wage war is now accorded by International Law to all independent states and principalities, however petty, but not to subjects. It was mentioned often among the "liberties" to which independent chiefs were entitled; as it is still recognized by International Law among the "liberties" of independent nations. In proportion as any sovereignty was absorbed in some larger lordship, this offensive right or "liberty" gradually disappeared. In France it prevailed extensively, till at last King John, by an ordinance dated 1361, expressly forbade Petty Wars throughout his kingdom, saying, in excellent words, "We by these presents ordain that all challenges and wars, and all acts of violence against all persons, in all parts whatsoever of our kingdom, shall henceforth cease; and all assemblies, musters, and raids of men-at-arms or archers; and also all pillages, seizures of goods and persons illegally, vengeances and counter-vengeances, surprisals and ambuscades.... All which things we will to be kept and observed everywhere without infringement, on pain of incurring our indignation, and of being reputed and held disobedient and rebellious towards us and the crown, and at our mercy in body and goods."[292] It was reserved for that indefatigable king, Louis the Eleventh, while Dauphin, as late as 1451, to make another effort in the same direction, by expressly abrogating one of the "liberties" of Dauphiné, being none other than the right of war, immemorially secured to the inhabitants of this province.[293] From these royal ordinances the Commonwealth of Nations might borrow appropriate words, in abrogating forever the Public Wars, or, more properly, the Grand Wars, with their vengeances and counter-vengeances, which are yet sanctioned by International Law among the "liberties" of Christian nations.
At a later day, in Germany, effective measures were taken against the same prevailing evil. Contests there were not confined to feudal lords. Associations of tradesmen, and even of domestics, sent defiance to each other, and even to whole cities, on pretences trivial as those sometimes the occasion of the Grand Wars between nations. There are still extant 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 the uncle of the belligerent,—by the baker and other 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 shoeblacks of the University of Leipsic against the provost and other members,—and, in 1477, by the cook of Eppenstein, with his scullions, dairy-maids, and dish-washers, against Otho, Count of Solms. Finally, in 1495, at the Diet of Worms, so memorable in German annals, the Emperor Maximilian sanctioned an ordinance which proclaimed a permanent Peace throughout Germany, abolished the right or "liberty" of Private War, and instituted a Supreme Tribunal, under the ancient name of Imperial Chamber, to which recourse might be had, even by nobles, princes, and states, for the determination of disputes without appeal to the sword.[294]