The Duel Between France and Germany | Page 2

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.