Elements of International Law
REVIEWS AND LITERARY NOTICES.
By , LL. D., etc. Eighth Edition. Edited, with Notes, by RICHARD HENRY DANA, Jr., LL. D. Boston : Little, Brown, & Co. 1866. 8vo. pp. 749.
LORD WESTBURY, in one of his masterly speeches on law reform, spoke with much truth, and in terms of severe censure, of the neglect with which public law has heretofore been treated in England, and the scanty contributions of English writers to it. And it is undoubtedly true, that, as the English language has no name by which to designate that branch of the law called by the civilians jus, and by the French publicists droit, so English libraries are without any great national work on this subject, although the English bar has produced innumerable treatises on municipal law, which are high models of profound learning, acute logic, and luminous exposition ; and Great Britain is still chiefly dependent for her international law upon the decisions of Lord Stowell and a few other judges, and the commentaries of the Continent and America.
But from an early period in our political history, international law has been a favorite study in the United States, both with jurists and statesmen. Our war of independence and the succeeding treaties gave rise to questions for solution by it of the greatest nicety, and thus attracted immediate attention to the whole science. To these there followed in quick succession our long-pending dispute with Great Britain upon her exercise of the oppressive claims of visitation and search, our position as a neutral nation during the long wars in Europe, our own war with England, and the wars between Spain and her revolted colonies. Such a succession of events, fruitful in international controversies, created a demand for the study of the law of nations such as is always sure to be supplied. The state papers of Mr. Madison and Mr. John Quincy Adams are a permanent monument to their familiarity with this subject. Contemporaneous with them were the unrivalled decisions of the Supreme Court when presided over by Chief Justice Marshall, and later have been published the works of Kent, Wheaton, Story, and other writers. All of these together comprise a treasure of learning of which we may well be proud.
Mr. Wheaton, by general consent, occupies the first place among our commentators. Inferior as a jurist to Chancellor Kent, he is not so high an authority upon any question which the latter carefully and thoroughly examined ; but long study and training, first before the Supreme Court, when he was not only the reporter of its decisions during the international era, but was of counsel in most of the important cases involving international law, and afterwards in an extended and useful diplomatic career in Europe, gave him an unequalled familiarity with the whole subject ; and he treated it in a much more elaborate manner than did Kent, who only discussed it as a branch of the more general science covered by his Commentaries. No better evidence of the value of Mr, Wheaton’s book is needed than the high estimation in which it is held in Europe, and particularly in England, where, as the production of a common-law lawyer, it has a greater value than the works of Continental scholars, and for reasons of which we shall speak presently. Lord Lyndhurst early bore testimony to its great merits, and during the last few years it has been universally regarded as an authority of the highest standard. No other publicist has been so frequently cited in the controversies which have grown out of our late civil war. The translation of the book into Chinese is a most interesting fact, flattering to the author, and a proof of the progress which Western thought and civilization are making in the extreme East.
It is of Mr. Dana’s edition of this valuable work that we are now called upon particularly to speak. As a new edition of the book was demanded, it was of the greatest importance that it should be placed in the hands of an editor competent to discuss, in a manner worthy of the distinguished commentator, those numerous and perplexing questions which have arisen since his death. The representatives of Mr. Wheaton were singularly fortunate in obtaining the aid of so prominent and so busy a man as Mr. Dana, — one who is himself a high authority on many branches of international law ; for it is not an easy matter to prevail upon a leader of the bar, and especially one immersed in the cares of official as well as of professional duties, to undertake a laborious literary work, even if it be of a legal character. Of the editor it is a delicate matter to speak ; but we can say without violating good taste, that few members of his profession unite at once, and to an equal degree with him, high professional acquirements, an enviable reputation as an orator and advocate, and the accomplishments of a varied and extensive scholarship, so that the words with which the President of Harvard College, at the recent Commencement, confererd upon him the degree of Doctor of Laws, Virum eloquentium jurisperitissimum, jurisperitorum eloquentissimum, could be applied to him with far less disregard of strict truth than university dignitaries consider allowable on such occasions. A large practice for more than twenty years in the maritime courts has given Mr. Dana an extensive and intimate acquaintance with one part of the subject he has here undertaken ; and his duties as United States District Attorney for Massachusetts, throughout the late war, obliged him to examine most carefully the whole law of prize, of neutral and contraband trade, and of blockade. The results of his labors comprise nearly half of the volume before us, and deserve some higher appellation than notes. Nowhere, however, does Mr. Dana push himself before his author. He never seems to forget that his duty is to prepare a new edition of Wheaton’s Commentaries, not to write a book of his own ; and he is content modestly to illustrate the text, and to supply the omissions needed to bring the book down to the present day.
It is not necessary to say that, in a literary point of view, Mr. Dana has done his work well. His style is a model of terseness, vigor, and perspicuity, and yet the reader is constantly charmed by its chaste purity and grace. We can say of him what Macaulay said of Bacon, that he has a wonderful talent of packing thought close and rendering it portable. It is a longtime since we have read a book in which so much matter was compressed into so small a space. The good taste and polished courtesy with which Mr. Dana treats of any controverted point cannot be too much praised; and his calmness and moderation in their discussion are judicial in their nature and extent, and give additional weight to his opinions.
We have been surprised to see notices of the work in which Mr. Dana is criticised for want of enthusiasm. If by this is meant that he lacks enthusiasm for his subject, the criticism is entirely misplaced. We doubt whether, without that, he could ever have been induced to edit this book ; and on every page, and in almost every line, convincing proof can be found of the love and devotion which the editor feels for the law, and especially for this department of it, to the study and practice of which he has devoted so many years. It is this enthusiasm that renders the notes to us more interesting than the text. Things which Mr. Wheaton discusses as abstractions seem in Mr. Dana’s hands to become living realities. In one the scholar’s temperament predominates ; in the other the lawyer’s and the politician’s. If, however, the criticism applies to the rigid impartiality which the editor brings to the discussion of those contemporaneous events concerning which the passions of men have been most recently and deeply aroused, we regard it as high praise, if Mr. Dana’s views be wrong, it is not likely that the indulgence of a partisan enthusiasm would have corrected them; if they be right, the absence of all passion, the studied courtesy and tolerant moderation which mark every line of argument, add infinite strength to his conclusions.
The legal merits of Mr. Dana’s annotations require other and higher tests. They depend upon the accuracy of his statements and reasoning, and the amount of assistance which those will obtain who seek it from him. To investigate this would require more space than we can now give, and rather falls within the province of a professional reviewer. A strong conviction of the soundness of his logic, however, involuntarily follows a careful perusal of these notes, and will have no little influence with those who feel it. This is partly owing to the passionless tone of his discussion, of which we have before spoken. The amount of historical and general political information which this book contains will give it value aside from its legal character, and demands for it a very general circulation.
The note upon the sources of international law is exceedingly instructive. Notwithstanding his long practice in admiralty and constant study of civil and foreign law, our editor adheres to his strong Saxon preference for actual judicial decisions as the best evidence of all law. The opinion of Continental writers is seen in its strongest light in a recent French author, who has pushed the doctrine as far as any one else, if not farther. After quoting several definitions of international law, Mr. Dana says : —
“ Hautefeuille divides international law into two parts, which he calls primitif and secondaire, — the first containing, as he says, the principles, the absolute basis, of the law ; and the second, the measures or provisions for calling up these principles and securing their execution. In the application of this theory, it will be found that the distinguished writer usually treats the primitive law, or the well or fountain of first principles, as of actual authority, where no express agreement departs from it; and so much of the practice of nations as consists in judicial decisions adopted, enforced, and acquiesced in, he considers as of less authority than the primitive law as it lies in the breast of the text-writers.....
“ Commentators seem agreed as to what are the sources of international law. They differ as to the relative importance and authority of these sources. Hautefeuille especially gives little weight to the decisions of prize courts, and places far before them the speculations of writers. It is noticeable that Continental writers incline the same way, although they may not go as far ; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i. e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are at the same time the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions ; and even those portions of the opinions of the court itself not necessary to the decision of the cause before it are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The Continental writers, on the other hand,—living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law, — are led by their education to look to but one authoritative source of law, — the decrees of legislators ; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision,”
The editor then sums up the respective merits of these two methods of deducing the principles of international law at a length which prevents our quoting the whole for the benefit of our readers. In conclusion he says : —
“ As an offset to this [the supposed impartiality of commentators], it is to be remembered that the commentator will often be a man of books and speculations, rather than of affairs ; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.
“ Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage, — and that each state is, in like manner, independent, and has made like concessions for a like purpose of international advantages, — such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption, that men and communities are by nature what they have always been found to be ; that the rights and duties of each man are, by Divine ordination, originally and necessarily, those at once of an individual and a member of society ; and that the lights and duties of a state are, in like manner, those at once of an individual state and one among a number of states ; and that neither class of these rights or duties is artificial, voluntary, or secondary.
“ In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized states, but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a Whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning.”
M. Hautefeuille, particularly, finds little favor with Mr. Dana. Repeatedly rules laid down by him are dismissed with the bare remark, that “he is without support either by judicial decisions, treaties, the opinions of commentators of received authority, or diplomatic positions taken by nations ” ; or, as in another place, that the principle broached “is merely a suggestion of the learned commentator as a possible policy, and has no support either in the practice of nations or the works of publicists” ; —but the editor never condescends to meet the French writer upon his own field of casuistry and speculation. And in this we think lie is right. The discussion of rules existing only in a text-writer’s belief in their abstract justice, would be entirely useless labor in any writer in the English language; for whatever may be the system of Continental Europe, neither the United States, nor Great Britain, nor any one of the future kindred nations that will grow out of the English colonies, will ever pay much regard to a doctrine so foreign to that noble system of law which, like their common tongue, will be a permanent proof of their common origin.
Two of the most admirable of Mr. Dana's notes are those on the “relations of the United States judiciary to the Constitution and statutes,” and on “ the United States a supreme government”; and they deserve careful perusal from all desirous of fully understanding our system of government. From the first we cannot refrain from making one extract, which may help to explain to our non-professional readers a difficult principle of law which we have never before seen so concisely and at the same time so clearly stated.
“ In cases before it, the Supreme Court has no other jurisdiction over constitutional questions than is possessed by the humblest judicial tribunal, State or national, in the land. The only distinction is, that it is the court of final resort, from whose decision there is no appeal. The relations of all courts to the Constitution arise simply from the fact that, being courts of law, they must give to litigants before them the law; and the Constitution of the United States is law, and not, like most European political constitutions, a collection of rules and principles having only a moral obligation upon the legislative and executive departments of the government. Accordingly, each litigant, having the right to the highest law, may appeal from a statute of Congress, or any other act of any officer or department, State or national, and invoke the Constitution as the highest law. The court does no? formally set aside or declare void any statute or ordinance inconsistent with the Constitution. It simply decides the case before it according to law; and if laws are in conflict, according to that law which has the highest authority, that is, the Constitution. The effect of the decree of the final court on the status of the parties or property in that suit is of course absolute, and binds all departments of tire government. The constitutional principle involved in the decision, being ascertained from the opinion, — if the court sees fit to deliver a full opinion,— has in all future cases in courts of law simply the effect of a judicial precedent, whatever that maybe. Upon the political department of the government and upon citizens the principle decided has, in future cases, not the binding force of a portion of the Constitution, but the moral effect due to its intrinsic weight and to the character of the tribunal, and the practical authority derived from the consideration that all acts inconsistent with it will be inoperative, by reason of the judicial power which any citizen may invoke against their operation.”
Our space will not allow us to make further quotations. Among those notes which are especially interesting to the non-professional reader we may mention those on the much misunderstood Monroe doctrine ; on naturalization; on the effect of belligerent occupation on slavery, and the President’s Proclamation of Emancipation, — in which Mr. Dana maintains the same position that he has heretofore taken in his political speeches, and of the correctness of which there can be no doubt; the veryexcellent examination of the neutrality statutes and decisions, and the note on the case of the Trent, — a model of calm, judicial dissertation. The recent agitation of the subjects of all of these makes them matters of general interest, and we cannot hut think that the timely publication of this edition of Mr. Wheaton’s work will aid efficiently in the satisfactory settlement of some of them. True to the principles which he holds of the evidences of international law, Mr. Dana avoids spending much time in discussing questions still unsettled, satisfying himself with a clear statement of the present state of each controversy, and leaving it for the future attention of statesmen and jurists. Attached to the volume is a full and carefully prepared Index, — sufficient for all the requirements of any reasonably intelligent reader.
We cannot dismiss this book without alluding to the newspaper controversy which the editor of the two preceding editions has started, and seems determined to keep alive, even if he have no antagonist. We wish to do full justice to Mr. Beach Lawrence’s services to the science of public law. His industry and the extent and variety of his information will always make his writings valuable as books of reference, — much as we think this value is lowered by his method of treatment and partisan views. Some natural disappointment and irritation would be excusable in him on the announcement that a work, of which he imagined he enjoyed a monopoly, was receiving the attention of so formidable a rival ; but this does not excuse the bad taste and bad temper with which he has published his complaints. Of the merits of his dispute with Mr. Wheaton’s heirs we know little, and shall say nothing, except that they have been guided in their conduct by what they regarded as high legal opinion of their rights and obligations, and that, if Mr, Lawrence has been wronged, the courts of which he talks so much, but to which he seems to be so slow to appeal, will give him redress. But if it be considered becoming to drag ladies and their private circumstances before the public in the manner in which Mr. Lawrence has done it, there must be a grievous decline of the old chivalrous feeling in regard to women. Still more solemnly must we protest against his recent charges against Mr. Dana. In these he impugns the honor of a distinguished contemporary, charging him with gross and impudent piracy of the results of another’s labors. If there be foundation for these charges, they ought to be made; but there are two ways of making them, and the course which Mr. Lawrence has taken in bringing them, at a time when Mr. Dana is absent from the country, and leaving them to rest solely on his own unsupported assertion — without citing or referring to any of the facts which he declares exist — is highly censurable. We have found no evidence of the truth of his charges in a cursory examination of a considerable part of both works ; and a friend upon whose judgment we place full reliance, and who has carefully compared the labors of the two editors, assures us that there is nothing which at all substantiates them. Mr. Lawrence has needlessly involved his own character in this affair; and the public will demand from him proofs of a most flagrant violation of the rights of literary property, before it will be inclined to admit any palliation for the errors he has committed in conducting the controversy.