Trial By Battle and the Civil War

Recently I came across a great article by Cynthia Nicoletti entitled “The American Civil War as a Trial by Battle.” (28 Law & Hist. Rev. 71 (2010)).  Trial by battle was one the dispute resolution mechanisms used under the early common-law writ system (basically, the litigants or their champions fought in single combat and the winner won the suit).  The theory behind this was that God would ensure that justice would prevail (presumably based on a preponderance of the evidence, but who knows what He uses).

While this system eventually fell out of favor and was replaced by jury trial, the Civil War was often described as a trial by battle on the issue of secession.  This served the interests of both sides in the conflict. Southerners claimed that their legal reasoning was right–they just lost on the battlefield. Northerners used the metaphor because it showed that their victory was God’s will.  Indeed, Lincoln alluded to this idea in his Second Inaugural:

“If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

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