IR Folks from Times Past

IR Folks from Times Past

Friday, September 13, 2013

The Progress of International Law

In this extract from the preface to the third edition of his Elements of International Law, written in November 1845, Henry Wheaton traces, from antiquity to modern times, the development of the law of nations—those “rules of international justice” that had been “more or less perfectly observed” by both Christian Europe and its descendants in North America and which had been “more recently applied to regulate the relations of the European and American nations with the Mohammedan and Pagan races of the other quarters of the globe.”  

Wheaton was the greatest of the nineteenth century American writers on international law. The tone of optimism pervading the work is one of its most notable features, as he registers respect for international law not as a forlorn aspiration but as a hard-won achievement. Notable too is his portrayal of the “superior humanity, justice, and liberality” of Europe and America “in comparison with the usage of the other branches of the human family.”  Wheaton’s optimism in 1845 contrasts markedly with the imminent onset of an age threatening to law, as the United States undertook an aggressive war with Mexico in 1846 whose results formed the preliminaries of a yet greater war between the states, and as Europe entered a long period of political instability and war from 1848 to 1871, leading to the rise and fall of liberal aspirations for a federation of free peoples and culminating in the establishment of the political system of the "armed peace."  

Like Friedrich Meinecke (writing several generations later, but to very different effect), Wheaton uses the opposition between Machiavelli and Grotius to state the fundamental problem in the conduct of international relations. (1600 words)

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The law of nations acknowledged by the ancient Greeks and Romans was exclusively founded on religion. The laws of peace and war, the inviolability of heralds and ambassadors, the right of asylum, and the obligation of treaties, were all consecrated by religious principles and rites. Ambassadors, heralds, and fugitives who took refuge in the temples, or on the household hearth, were deemed inviolable, because they were invested with a sacred character and the symbols of religion. Treaties were sanctioned with solemn oaths, the violation of which it was believed must be followed by the vengeance of the gods. War between nations of the same race and religion was declared with sacred rites and ceremonies. The heralds proclaimed its existence by devoting the enemy to the infernal deities. "Eternal war against the Barbarians," was the Shibboleth of the most civilized and enlightened people of antiquity. Among the Romans "stranger" and "enemy" were synonymous. . . . [E]ven the purest moralists hardly admitted any other duties between the Greeks themselves than such as were founded on positive compact.

The introduction of Christianity tended to abolish the Pagan precept: "Thou shalt hate thine enemy,” and to substitute for it the benevolent command: "Love your enemies,” which could not be reconciled with perpetual hostility between the different races of men. But this milder dispensation long struggled in vain against the secular enmity of the different nations of the ancient world, and that spirit of blind intolerance which darkened the ages succeeding the fall of the Roman Empire. During the Middle Ages the Christian States of Europe began to unite, and to acknowledge the obligation of an international law common to all who professed the same religious faith. This law was founded mainly upon the following circumstances:

First: The union of the Latin Church under one spiritual head, whose authority was often invoked as the supreme arbiter between sovereigns and between nations. Under the auspices of Pope Gregory IX., the canon law was reduced to a code, which served as the rule to guide the decisions of the Church in public as well as private controversies.

Second: The revival of the study of the Roman law, and the adoption of this system of jurisprudence by nearly all the nations of Christendom, either as the basis of their municipal codes, or as subsidiary to the local legislation in each country.

The origin of the law of nations in modern Europe may thus be traced to these two principal sources,— the canon. law and the Roman civil law. . . . The great religious revolution of the sixteenth century undermined one of the bases of this universal jurisprudence: but the public jurists of the Protestant school, whilst they renounced the authority of the Church of Rome and the canon law, still continued to appeal to the Roman civil law, as constituting the general code of civilized nations.

The establishment of the system of a balance of power among the European States also contributed to form the international law recognized by them. The idea of this system, though not wholly unknown to the statesman of antiquity, had never been practically applied to secure the independence of nations against the ambition of the great military monarchies by which the civilized world was successively subdued. The modern system of the balance of power was first developed among the States of Italy during the latter part of the fifteenth century, and was applied, in the first instrance, in order to maintain their mutual independence, and, subsequently, to unite them all against the invasions of the transalpine nations. Such was the policy of the Republic of Florence under Cosmo and Lorenzo de Medici, and such was the object of Machiavelli in writing his celebrated treatise of the Prince. Unfortunately for his own fame, and for the permanent interests of mankind, this masterly writer, in his patriotic anxiety to secure his country against the dangers with which it was menaced from the Barbarians, did not hesitate to resort to those atrocious means already too familiar to the domestic tyrants of Italy. The violent remedies he sought to apply for her restoration to pristine greatness were poisons, and his book became the manual of despotism, in which Philip II. of Spain, and Catherine de Medici, found their detestable maxims of policy. But policy can never be separated from justice with impunity. Sound policy can never authorize a resort to such measures as are prohibited by the law of nations, founded on the principles of eternal justice; and, on the other hand, the law of nations ought not to prohibit that which sound policy dictates as necessary to the security of any State. "Justice," says Burke, "is the great standing policy of civil society, and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all."

Whatever may he thought of the long-disputed question as to the motives of Machiavelli in writing, his work certainly reflects the image of that dark and gloomy period of European society, presenting one mass of dissimulation, crime, and corruption, which called loudly for a great teacher and reformer to arise, who should stay the ravages of this moral pestilence, and speak the unambiguous language of truth and justice to princes and people. Such a teacher and reformer was Hugo Grotius, whose treatise on the Laws of Peace and War, produced a strong impression on the public mind of Christian Europe, and gradually wrought a most salutary change in the practical intercourse of nations in favor of humanity and justice. Whatever defects may be justly imputed to the works of Grotius, and the public jurists formed in his school, considered as scientific, expository treatises, it would be difficult to name any class of writers which has contributed more to promote the progress of civilization than [quoting Patrick Henry] "these illustrious authors —these friends of human nature — these kind instructors of human error and frailties— these benevolent spirits who held up the torch of science to a benighted world."  If the international intercourse of Europe, and the nations of European descent, has been since marked by superior humanity, justice, and liberality, in comparison with the usage of the other brunches of the human family, this glorious superiority must be mainly attributed to these private teachers of justice, to whose moral authority Sovereigns and States are often compelled to bow, and whom they acknowledge as the ultimate arbiters of their controversies in peace; whilst the same authority contributes to give laws even to war itself, by limiting the range of its operations within the narrowest possible bounds consistent with its purposes and objects.

It has been observed by Sir James Mackintosh, that, without overrating the authority of this class of writers, or without considering authority in any case as a substitute for reason, the public jurists may justly be considered as entitled to great weight as impartial witnesses bearing testimony to the general sentiments and usages of civilized nations. Their testimony receives additional confirmation every time their authority is invoked by statesmen, and from the lapse of every successive year in which the current of this authority is uninterrupted by the avowal and practice of contrary principles and usages. Add to which, that their judgments are usually appealed to by the weak, and are seldom rejected except by those who are strong enough to disregard all the principles and rules of international morality. . . .

The rules of international morality recognized by these writers are founded on the supposition, that the conduct which is observed by one nation towards another, in conformity with these rules, will be reciprocally observed by other nations towards it. The duties which are imposed by these rules are enforced by moral sanctions, by apprehension on the part of sovereigns and nations of incurring the hostility of other States, in case they should violate maxims generally received and respected by the civilized world. These maxims may, indeed, he violated by those who choose to suffer the consequences of that hostility; but they cannot be violated with impunity, nor without incurring general obloquy. The science which teaches the reciprocal duties of sovereign States is not, therefore, a vain and useless study, as some have pretended. If it were so, the same thing might be affirmed of the science of private morality, the duties inculcated by which are frequently destitute of the sanction of positive law, and are enforced merely by conscience and social opinion. As the very existence of social intercourse in private life depends upon the observance of these duties, so the existence of that mutual intercourse among nations, which is so essential to their happiness and prosperity, depends upon the rules which have generally been adopted by the great society of nations to regulate that intercourse. . . .

That international law, common to all civilized and Christian nations, which our ancestors brought with them from Europe, and which was obligatory upon us whilst we continued to form a part of the British Empire, did not cease to be so when we declared our independence of the parent country. Its obligation was acknowledged by the Continental Congress, in the ordinances published by that illustrious assembly for the regulation of maritime captures, and by the Court of Appeals, established for the adjudication of prize causes luring the War of the Revolution. In the mean time, the United States had recognized, in their treaty of alliance with France, those principles respecting the rights of neutral commerce and navigation which subsequently became the basis of the armed neutrality of the northern powers of Europe. The American government has ever since constantly recognized and respected the same principles towards those maritime States by whom they are reciprocally recognized and respected. As to all others, it continues to observe the pre-existing rules of the ancient law of nations, whilst it has ever shown itself ready to adopt measures for mitigating the practices of war, and rendering them more conformable to the spirit of an enlightened age.  

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Henry Wheaton, Elements of International Law, Eighth Edition, edited by Richard Henry Dana, Jr. (Boston: Little, Brown, 1866), xv-xxiii.

Wheaton gives an account of the influence of Christianity on the law of nations that bears interesting comparison with that of Arthur M. Schlesinger, Jr.

Wheaton died on March 11, 1848. From 1827 to 1846 he was a diplomatic representative of the United States in Europe, first at Copenhagen, then at Berlin, but was rudely dismissed by James Polk in 1846. This closed his diplomatic career, writes his editor, Francis Dana, with “one of the most unfortunate sacrifices our government ever made to mere party routine.”  Previously, from 1816 to 1827, during “the great period of the Federal Bench and Bar,” he was the reporter of the decisions of the Supreme Court. As Dana suggests, Wheaton had unique advantages as a commentator on international law.

He was familiar with the four languages in which the stores of international law are gathered. He had the early preparatory discipline successively of a practising lawyer, and a reporter of judicial decisions, followed by twenty years of diplomatic experience at one of the political centres of Europe. He maintained an intimate personal acquaintance and familiar correspondence with the most eminent statesmen, publicists, and scholars of Europe and America; and kept himself thoroughly informed of the current history of whatever bore upon the relations of States. In short, he combined the advantages of the discipline of a barrister, the culture of a scholar, the experience of a diplomatist, and the habits of a man of society. And it is no small thing to add, that, to a subject essentially moral, he brought a purity of nature, candor, and fidelity to truth and duty, as remarkable as his learning, industry, and philosophy. (Editor’s Preface, x)

Portrait courtesy of Wikipedia.