Trial by Battle, or "judicial combat," furnishes the most vivid picture of the Arbitrament of War, beyond even what is found in the system of Petty Wars. It was at one period, particularly in France, the universal umpire between private individuals. All causes, criminal and civil, with all the questions incident thereto, were referred to this senseless trial. Not bodily infirmity or old age could exempt a litigant from the hazard of the Battle, even to determine differences of the most trivial import. At last substitutes were allowed, and, as in War, bravoes or champions were hired for wages to enter the lists. The proceedings were conducted gravely according to prescribed forms, which were digested into a system of peculiar subtilty and minuteness,—as War in our day is according to an established code, the Laws of War. Thus do violence, lawlessness, and absurdity shelter themselves beneath the Rule of Law! Religion also lent her sanctions. With presence and prayer the priest cheered the insensate combatant, and appealed for aid to Jesus Christ, the Prince of Peace.
The Church, to its honor, early perceived the wickedness of this system. By voices of pious bishops, by ordinances of solemn councils, by anathemas of popes, it condemned whosoever should slay another in a battle so impious and inimical to Christian peace, as "a most wicked homicide and bloody robber"[295]; while it treated the unhappy victim as a volunteer, guilty of his own death, and handed his remains to unhonored burial without psalm or prayer. With sacerdotal supplication it vainly sought the withdrawal of all countenance from this great evil, and the support of the civil power in ecclesiastical censures. To these just efforts let praise and gratitude be offered! But, alas! authentic incidents, and the forms still on record in ancient missals, attest the unhappy sanction which Trial by Battle succeeded in obtaining even from the Church,—as in our day the English Liturgy, and the conduct of the Christian clergy in all countries, attest the unhappy sanction which the Institution of War yet enjoys. Admonitions of the Church and labors of good men slowly prevailed. Proofs by witnesses and by titles were gradually adopted, though opposed by the selfishness of camp-followers, subaltern officers, and even of lords, greedy for the fees or wages of combat. In England Trial by Battle was attacked by Henry the Second, striving to substitute Trial by Jury. In France it was expressly forbidden by that illustrious monarch, St. Louis, in an immortal ordinance. At last, this system, so wasteful of life, so barbarous in character, so vain and inefficient as Arbiter of Justice, yielded to judicial tribunals.
The Trial by Battle is not Roman in origin. It may be traced to the forests of Germany, where the rule prevailed of referring to the sword what at Rome was referred to the prætor; so that a judicial tribunal, when urged upon these barbarians, was regarded as an innovation.[296] The very words of surprise at the German custom are yet applicable to the Arbitrament of War.
The absurdity of Trial by Battle may be learned from the instances where it was invoked. Though originally permitted to determine questions of personal character, it was extended so as to embrace criminal cases, and even questions of property. In 961 the title to a church was submitted to this ordeal.[297] Some time later a grave point of law was submitted. The question was, "Whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive." The general opinion at first was for reference of the question to the adjudication of arbiters; but we are informed by a contemporary ecclesiastic, who reports the case, that the Emperor, Otho the First, "taking better counsel, and unwilling that nobles and elders of the people should be treated dishonorably, ordered the matter to be decided by champions with the sword." The champion of the grandchildren prevailed, and they were enabled to share with their uncles in the inheritance.[298] Human folly did not end here. A question of theology was surrendered to the same arbitrament, being nothing less than whether the Musarabic Liturgy, used in the churches of Spain, or the Liturgy approved at Rome, contained the form of worship most acceptable to the Deity. The Spaniards contended zealously for the liturgy of their ancestors. The Pope urged the liturgy having his own infallible sanction. The controversy was submitted to Trial by Battle. Two knights in complete armor entered the lists. The champion of the Musarabic Liturgy was victorious. But there was an appeal to the ordeal of fire. A copy of each liturgy was cast into the flames. The Musarabic Liturgy remained unhurt, while the other vanished into ashes. And yet this judgment, first by battle and then by fire, was eluded or overthrown, showing how, as with War, the final conclusion is uncertain, and testifying against any appeal, except to human reason.[299]
An early king of the Lombards, in a formal decree, condemned the Trial by Battle as "impious"[300]; Montesquieu, at a later time, branded it as "monstrous"[301]; and Sir William Blackstone characterized it as "clearly an unchristian, as well as most uncertain, method of trial."[302] In the light of our day all unite in this condemnation. No man hesitates. No man undertakes its apology; nor does any man count as "glory" the feats of arms which it prompted and displayed. But the laws of morals are general, and not special. They apply to communities and to nations, as well as to individuals; nor is it possible, by any cunning of logic, or any device of human wit, to distinguish between that domestic institution, the Trial by Battle, established by Municipal Law as arbiter between individuals, and that international institution, the grander Trial by Battle, established by the Christian Commonwealth as arbiter between nations. If the judicial combat was impious, monstrous, and unchristian, then is War impious, monstrous, and unchristian.
It has been pointedly said in England, that the whole object of king, lords, and commons, and of the complex British Constitution, is "to get twelve men into a jury-box"; and Mr. Hume repeats the idea, when he declares that the administration of justice is the grand aim of government. If this be true of individual nations in municipal affairs, it is equally true of the Commonwealth of Nations. The whole complex system of the Law of Nations, overarching all the Christian nations, has but one distinct object,—the administration of justice between nations. Would that with tongue or pen I could adequately expose the enormity of this system, involving, as it does, the precepts of religion, the dictates of common sense, the suggestions of economy, and the most precious sympathies of humanity! Would that now I could impart to all who hear me something of my own conviction!
I need not dwell on the waste and cruelty thus authorized. Travelling the page of history, these stare us wildly in the face at every turn. We see the desolation and death keeping step with the bloody track; we look upon sacked towns, ravaged territories, violated homes; we behold all the sweet charities of life changed to wormwood and gall. The soul is penetrated by the sharp moan of mothers, sisters, and daughters, of fathers, brothers, and sons, who, in the bitterness of bereavement, refuse to be comforted. The eye rests at last upon one of those fair fields, where Nature, in her abundance, spreads her cloth of gold, spacious and apt for the entertainment of mighty multitudes,—or, perhaps, from curious subtilty of position, like the carpet in Arabian tale, contracting for the accommodation of a few only, or dilating for an innumerable host. Here, under a bright sun, such as shone at Austerlitz or Buena Vista, amidst the peaceful harmonies of Nature, on the Sabbath of Peace, are bands of brothers, children of a common Father, heirs to a common happiness, struggling together in deadly fight,—with madness of fallen spirits, murderously seeking the lives of brothers who never injured them or their kindred. The havoc rages; the ground is soaked with commingling blood; the air is rent by commingling cries; horse and rider are stretched together on the earth. More revolting than mangled victims, gashed limbs, lifeless trunks, spattering brains, are the lawless passions which sweep, tempest-like, through the fiendish tumult.
"'Nearer comes the storm and nearer, rolling fast and frightful on.
Speak, Ximena, speak, and tell us, who has lost and who has won?'