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)
* * *
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. . . .
* * *
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.
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)
