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LAW OF NATIONS.*

THE return of Mr. Wheaton to the United States, after a mission of twenty years to Europe, in the service of his country, has been properly celebrated by a large portion of his fellow-citizens. Mr. Wheaton has not only faithfully served his country in the capacity of minister, forwarding, to a considerable extent, our commercial relations with the interior of Europe, by successfully bringing to a close negotiations for the more extensive consumption of American produce in the interior of Germany, but he has added, by his labors in the science of international law, to her fame, and greatly influenced the course of events, in the relations between Europe collectively and republican America. As a historian, a statesman, and a lawyer, he unites practical with theoretical knowledge; and his History of the Law of Nations, together with his essay on its actual state, are among the best on the subject. From the imperfect state of the science, international law is a difficult subject on which to treat, and Mr. Wheaton has made the most of the materials. The law has hitherto been formed on the will of despotic governments, but must hereafter be based on the opinions of the people; and in view of this increasing breadth of foundation, Mr. Wheaton stands on solid ground.

The law of nations, or, perhaps, more properly the custom of nations, has been, until recently, but a lax code. Nations being in a state of natural liberty towards each other, there exists no earthly superior to establish rules for them; the decrees of Christianity, how great soever may be their influence over the actions of individuals, have generally been discarded in the practice of collective bodies. In the early times of Greece and Rome, international law was based almost exclusively on religion. Ambassadors and agents between states derived inviolability for the sacred character with which they were endowed. The law of nations, however, progressed, seemingly, in the manner that commercial legislation, on the part of states, advances in the present age. The modern nations of Europe have, under the protective system, been in a state of commercial hostility, until commercial treaties have gradually done away with acts mutually hostile. In like manner, all nations, in the early ages, were assumed to be in a state of hostility to each other; "stranger" and "enemy" were synonymous terms, even in enlightened Rome. This state of hostility was modified by actual compacts or treaties. From these treaties and precedents of intercourse, guided by the spread and unity of the Latin Church and the study of the Roman law, resulted the "law of nations," first reduced to a system by Hugo Grotius, and subsequently supported by other distinguished writers, received as authority. In the writings of these men, for the most part, however, it is very difficult to distinguish between law as it exists, or is practised, and what they think ought to be law.

1st. History of the Law of Nations in Europe, from the peace of Westphalia to the Congress of Vienna; with a Historical Notice of that Law before the peace of Westphalia. By Henry Wheaton, Minister of the United States to the Court of Berlin.

2d. Elements of International Law. By Henry Wheaton, LL. D., Minister of the United States to the Court of Berlin. Third edition. Lea & Blanchard, Philadelphia.

3d. Enquiry into the Right of Visitation and Search of American Vessels suspected to be engaged in the Slave Trade. By Henry Wheaton, LL. D., Minister, &c. Lea & Blanchard. Philadelphia.

Inasmuch as that there is no actual authority to enforce the law of nations, even if clearly defined, it must rest upon public opinion, which has, in the last fifty years, wonderfully progressed in information and means of action. The elements of the law of nations are, first, rules in accordance with Divine commands, and are supposed to restrain, from a sense of justice, the aggressions of a powerful nation on its weaker neighbors; and secondly, those rules which are dictated or permitted by the state of opinion in a nation, and which form the actual or positive law of nations. If, however, we look into the actual conduct of nations, even the most civilized and Christian among them, we find that when they conflict with their supposed interests, no laws, human or divine, have been regarded. The example of England, and the nations of Europe, from 1792 to 1814, shook the law of nations to its foundation—each and all of them grossly violated all its maxims. The reason is, probably, that public opinion, which is the only authority by which laws can at all be enforced, has, until the present century, enjoyed, comparatively, but little influence. An unscrupulous tyrant, ruling an unenlightened people with an iron rod, may make or break treaties, and disregard all moral dictates, having no reference, except to his own power, to enforce his will. With the progress of human rights and constitutional governments, this public opinion is beginning to have great weight; international "morality" is becoming assimilated to international "law," and the conduct of nations to be regulated by the sense of justice entertained by its people, rather than by the individual interests of the governing few. A remarkable instance of this is manifest in the conduct of England. She undertook, in 1793, the most stupendous war of modern times, for the sole purpose of forcing upon the French people a Bourbon king, whom they had rejected. This was the act of the governing aristocracy, for selfish purposes. After twenty years' war, that purpose was accomplished, and the sovereigns, allied with England, formed a treaty, binding themselves to sustain any government against the popular movement of its people. In 1827, however, England was impelled, by the popular voice, to interfere on behalf of the revolted Greeks, against the Turks.

The change which the law of nations has undergone, has proceeded, in a great degree, from the growth of the commercial principle, and the advance of popular influences in the scale of governments. These influences, Mr. Wheaton has traced with great precision and ability. At the close of his work he recapitulates as follows:

"On a general view of the progress of the law of nations since the peace of Westphalia, it appears to me

"That the result has been, rather that the principles laid down by Grotius, and by the jurists of his school, have been more clearly defined and recognised, than that new laws have been established to regulate international relations.

"That these relations have been maintained by the general adoption of permanent missions, and the recognition of diplomatic privileges.

"That although the right of intervention to preserve the balance of power, or to prevent the dangers to which one country may be exposed by the domestic events within another, has been frequently assumed, yet no general rules have been discovered by which the occasions which called it forth, or the extent to which it may be carried, can be laid down; and that it remains. therefore, an undefined and undefinable exception to the mutual independence of nations.

"That the exclusive dominion over particular seas has been abandoned, as a barbarous pretension-the general right to use the ocean for the purposes of navigation, commerce, and fishery, has been conceded, and the right of search limited to periods of war.

"That the universal right to use the Scheldt, the Rhine, and the other great European rivers, has been established as a principle of international law.

"That the colonial monopoly has nearly ceased, and with it the question as to the right of neutrals to enjoy in war a commerce prohibited in peace.

"That the slave-trade is generally reprobated as a stain on human nature, though not universally abolished in fact, or even by law.

"That the laws of war have been improved, and among the more civilized nations, the usages of war have been sensibly softened and that, although there is still some uncertainty as to the rights of neutral navigation, a conventional law has been created by treaty, which shows a manifest advance towards securing the commerce of nations which remain at peace, from interruption by those which

are at war.

"That the sphere within which the law of nations operates, has been extended by the unqualified accession of the states of the western hemisphere, by the tendency of the Mahomedan powers to adopt the public law of Christendorn, and by the general feeling, even among less civilized nations, that there are rights which they may exact from others, and, therefore, duties which they may be required to fulfil.

"That the law of nations, as a science, has advanced with the advance of philosophical knowledge, and the improvement in philosophical language, with our extended knowledge of the past and of the present condition of mankind, and with the variety and importance of the occasions for its application.

"And lastly, that the law of nations, as a system of positive rules, regulating the intercourse of nations, has improved with the general improvement of civilization, of which it is one of the most valuable products."

Some of those views of international morality laid down by Grotius have become practical, through the advance of public opinion, as in the case of the Scheldt. Holland and England, by treaty, closed the Scheldt against Belgium, and by so doing infringed a natural right, which could not but be asserted in later times. When republican France opened the Scheldt to Belgian vessels, this action of France was one of the causes that led to the war waged against her by England; and yet, at the treaty of Vienna, the Scheldt was made free. In other cases, where Grotius affirmed the lawfulness of hostilities, it would not now be recognised. Thus, he states it to be a just cause of war, if a nation engaged in a just war with a third party, is denied by a neutral the liberty of military transit, whether the motive for denial be the fear of injury from the passing army, or from the other belligerent. In accordance with this principle England, under circumstances of atrocity, seized Copenhagen in 1807; and yet that power had inveighed in the strongest. terms against Bonaparte, for ordering Bernadotte to pass through the Prussian territory of Anspach, in his passage from Hanover to the investment of Ulm, in 1805; and which would not now be tolerated.

It was held by Grotius that a nation is strictly bound to surrender refugees or to punish them. This now is a matter for special treaty only, and required only when a treaty exists. The United States, under such a law as laid down by Grotius, would be well employed indeed in delivering up the oppressed of all nations that have come here to enjoy their natural rights. The conduct of Great Britain in the long wars of the revolution, was of more injury to international law than that of all other nations, because hers was the constitutional government, and that in which the soundest public opinion was supposed to sustain the maxims of public law. Yet we find her always insolent, illegal and unjust. She trampled under foot law and morality, and committed numberless crimes of violence and treachery. She alone boasting of her inviolate faith, was the first to set her engagements at naught. Her retention of Malta, in violation of the treaty of Amiens, after the terms of the

treaty had been fulfilled on the part of France, on the silly pretence that another war was inevitable from the course of events, was unmatched in fraud. The robbery of Spain while at peace with her, by sending instructions to Lord Nelson to despatch two frigates to cruise off Cadiz and seize the homeward bound treasure ships, which was done, and 10,000,000 silver dollars seized, was a strong commentary upon international law, as practised by England. War, of course, followed this robbery. The Spanish manifesto truly stated," the English government manifested its secret and perverse aims by the abominable capture of four Spanish frigates, navigating in a state of profound peace, at the very moment when the English vessels were enjoying the full rights of hospitality in the harbors of Spain." The English made every attempt at explanation and apology, but kept the money. The unadulterated thievery of the transaction is apparent in the instructions to Nelson. "You are not to detain any homeward-bound ship of war, unless she shall have treasure on board." Even England's aristocratic historian blushes over the base crime, and states: "Better that all the dollars, and ten times their quantity were paid, so that it could wash away the stain which had been brought upon our arms." From these facts it is evident that the standard of international morality is sufficiently low in England.

The theory of the balance of power, required that nations should interfere to prevent the too great extension of a strong power. During the period embraced in Mr. Wheaton's book, four wars have grown out of this theory. Three of them to restrain France, and one to restrain Russia. The first was the war of 1688, terminating in the peace of Ryswick in 1697, by which the power of France was diminished, and the authority of England on the continent considerably enhanced. The second was the" War of Succession." Charles II. of Spain, without issue, had the power to bequeath his territories, which included the Netherlands. The choice was between Austria and France, and he left them to the latter. England and Holland went to war to prevent the execution of this will, and drove France out of the Netherlands, at an expense for which the people of England are now paying taxes. The treaty of Utrecht closed that war. Russia, towards the close of the century, became an object of dread, and Sweden and Turkey declared war against her, and it ended with but little results. The coalition of all the powers against France for twenty years, formed the fourth case. All these wars were made for the benefit of ruling individuals at the expense of the people.

It is seldom, however, that a nation rests its interference in the affairs of an independent neighbour on the bare ground of inconvenience or danger to herself. She generally supports her invasion by the further pretext, that it is for the purpose of redressing some injury suffered by some class, or even by some individual of the invaded nation; and she usually asserts that the interests of the class, or of the individual whose side she espouses, are those of the nation as a whole, and that the nation to be attacked is a most dangerous neighbor. Thus Poland has been a most remarkable instance of the theory which requires that a strong nation should be checked. In 1793, Russia stated in relation to Poland, that she

"Found that her endeavours to maintain peace and quiet among her Polish neighbors had been attended with innumerable losses, and that some unworthy Poles had not been ashamed to approve the government of the ungodly rebels in the kingdom of France. From these considerations, her Imperial Majesty, for the future safety of her empire, and for the cutting off for ever of all future

disturbances, was pleased to take under her sway, and unite for ever to her empire, the territories between the Dwina and the Dniester."

Prussia and Austria had very similar reasons, and they all united in the necessity of dividing the "dangerous" country between them. It was the singular fate of Poland to become more and more dangerous ast she became more and more weak. She was dangerous in 1772, and was stripped of half her territories. She was found still more dangerous in 1793, and three-fourths of the remainder were taken from her. Still, however, she excited alarm among her great neighbors; and, in 1795, they finally dismembered her. The congress of Vienna left the free city of Cracow as the monument of Poland. In 1846, that little city became more dangerous than even was the ancient republic, and Austria has been compelled to swallow it altogether for safety. Yet the sympathies of the people of all countries have been with the Poles, and if popular opinion had been freely expressed, the extinguishment of Poland would never have taken place.

Mr. Wheaton sets forth, with admirable clearness, the general proposition, that the foreign policy, and in so far the international law of European nations, has been guided by their monarchs. Now, it is scarcely necessary to remind our readers, that this college of sovereigns is animated by an esprit de corps stronger than that which unites any other equally large class in the world. Their constant intermarriages have connected them by ties of consanguinity and affinity, which constitute them one family scattered over the different thrones of Europe; their remote and inaccessible position deprives them of society, on equal terms, except among one another. The only language which they hear, speaks of devotion to their interests, and even to their wishes; and, what is still more important, they are all in the presence of a common enemy, the advancing spirit of democracy. From the sixteenth century, when the United Provinces threw off the yoke of Philip II., every succeeding age has witnessed victories of democratic over royal power more and more important. The English revolution marked the seventeenth century: those of British America and France, the eighteenth; and in the nineteenth, we have already seen the triumph of popular power in Spain, Prussia, Portugal, France, Belgium, Saxony, and Norway. In every one of these countries, the royal power was, within our own memory, despotic. In every one of these, the sovereign is now either a mere instrument in the hands of the representatives of his people, or derives his influence from the accident of his personal qualities. The philosopher may know that such changes are on the whole beneficial, but no sovereign ever believed so; or, if such were his belief, ever acted on it. Among all their mutual jealousies, sovereigus have always had a strong fellow-feeling for a king against a people. And where they have assisted the latter, they have generally done so iu obedience to some overpowering motive of aggrandizement or self-defence; or to some sympathy between their own subjects and those of their brother, which they did not think it safe to resist.

Thus William, as Stadtholder of the United Provinces, interfered to protect the people of England from the tyranny of James II.; but it was partly to obtain a throne for himself, partly to use the resources of England in his struggle against France, and partly from the sympathy between the Dutch and English Protestants. If James had been a Protestant, and an enemy of France, he might have subverted the liberties of England unchecked by foreign interference.

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