WHEATON'S INTERNATIONAL LAW.*
So many important questions of international law have arisen in England within the last few• years, that we turn with consider- able interest to a new edition of what is usually considered the standard work on the subject. Mr. Wheaton's book has been recognized as an authority for nearly thirty years ; and in spite of its defects, and the rivalry of later writers, it still is fairly entitled to the first place. The author, as an American and a diplomatist, had singular advantages for performing his task. As an American he stood aloof from all sympathy with old European controversies, and he further represented the views and principles of a young commercial nation, starting on its career with no fetters of tradition. As a diplomatist he had great practical knowledge of the working of treaties and the conduct of negotiation, and he learned fully to appreciate the fundamental axiom of all international law, that it has no positive sanction independent of treaty. His two chief defects spring from the same causes. He is very naturally prone to attach peculiar importance to all questions specially affecting his own country, an error which might unquestionably be avoided, but which is probably less injurious than if it had been made by the citizen of any other country. He is also somewhat meagre in his treatment of the international aspect of private rights, a sub- ject of which a trained lawyer would be more apt to feel the im- portance. His grasp of the general principles of jurisprudence is firm, and his treatment of them generally clear and sound; nor has any better method of dividing and discussing the subject ever been .adopted. Mr. Wheaton, however, has been dead for eighteen years, and the changes in international law which have taken place during the interval render it a matter of great importance how his original text is edited and supplemented. In this respect the new edition has a marked advantage over the others which have been issued since the author's death. The former ones were edited and aug- mented with a considerable mass of notes by Mr. W. B. Lawrence, who neither by his calling nor by his own abilities was well fitted to supplement Wheaton's defects, and to make the additions required by the course of history. He also was a diplomatist,. prolix in his style, and with a tendency far stronger than Mr. Wheaton's to dwell specially on matters of American interest. He added nothing on that branch of the subject which Wheaton had, as we have already mentioned, treated imperfectly, and he loaded the book with many voluminous notes on points of very slight importance. The present editor, Mr. R. H. Dana, has discarded the whole of his predecessor's additions to the original text, but has added many notes of his own. Some of these are substituted for Mr. Lawrence's, and are usually a great improvement on them, but many of course are on entirely new topics, mainly such as have come into notice since Mr. Lawrence wrote, though a few supply defects in Wheaton's text which Mr. Lawrence did not attempt to remedy. There is also a new and improved index, and a separate table of the principal subjects discussed in the editor's notes. That the present edition is considerably superior to the previous ones will be admitted by every one who will take the trouble to compare them together ; but the superiority is in point of execution, not in comprehension of the true principles on which a treatise of international law ought to be written. The additional notes of both editors contain long disquisitions on almost every international dispute which has arisen during the last twenty years, certainly on every point affecting American interests: The arguments are given at considerable length, and too often the writer indulges in a little argument on his own account. It is possible that the United States may have been right in every instance, and it is perfectly natural that an American should defend the view taken by his own country ; but the right place to do this is in an avowedly controversial work, not in one professing to lay down judicially the principles of International law. English writers may have offended in a similar manner ; Wheaton himself is not innocent, as witness his totally irrelevant tirade about the burning of Washington ; but Wheaton's editors exaggerate the fault of their master, and all we can say in Mr. Dana's favour is that his notes are better written, more systematic, and more complete than Mr. Lawrence's.
lanton's International lam Eighth Edition. By E. H. Dana, LL.D. 1866. It is the established practice, with new editions of law books that have attained a reputation, to leave the author's text un- altered, or at least to mark clearly which are his original words, and which the additions of the subsequent editor. Whether this method be in itself a good one or not, it may easily be carried too far. To leave unaltered in the text such statements as that Den- mark is a member of the Germanic Confederation in virtue of Holstein, with a correction inserted, if at all, in a note printed in very small type, is paying most unreasonable deference to the author. For no possible reason can it be desirable, if a book is to be edited and corrected at all, that statements of facts which have become false should be left as the author made them. The first requisite of any text-book is that the reader should be able to trust it ; and though respect for Mx. Wheaton may reasonably prompt editors to preserve his dicta, -especially on a subject where the opinions of competent writers are quoted as if they were judi- cial decisions, and to cast all opinions of their own into notes, yet this slavish adherence to form is positively mischievous where the facts have altered since Wheaton wrote. Mr. Dana, when- he thinks Wheaton wrong in his opinion, does not scruple to say so, as, for instance, in a note on a slave-trade case at p. 208 ; he need not surely hesitate to amend the text in places where beyond all possible question Wheaton is wrong, by the change of circum- stances, not by his own fault. Great as is the improvement of the present edition over previous ones, we cannot help thinking that much yet remains to be done. It is doubtless a hard task to ar- range perfectly, and assimilate with the old matter, the additions which the editor feels bound to make, and especially hard when he determines to put all the new matter into notes ; but the difficulty is not insuperable, and Mr. Dana might have done more to over- come it. Let us hope that by the time another edition is required he will have modified his views as to the proper duties of an editor, that he will then import into the text all necessary corrections and additions, greatly curtail the discussions on questions of present interest but of no great importance in principle, and relegate to an appendix, or banish altogether, the matter which concerns only his own country. By so doing he will not diminish Mr. Wheaton's reputation, and he will certainly add greatly to his own credit, as being something more than a mere editor.
International law is necessarily a most intricate and diffi- cult subject to discuss. In the strict sense of the term there can be no such thing, for a law implies a sanction, a superior authority to exact obedience, which obviously does not exist as between independent communities. Prac- tically, however, the title is used to comprise a variety of subjects which have little connection in principle, but are con- veniently treated together as being different sides of the relations which arise between different nations and their several citizens. There are, in the first place, the positive obligations of any one nation towards any other, arising out of treaties. Nations, like individuals, have in general a respect for their plighted faith, and therefore observe treaties ; but if they choose to violate them, there is, of course, no means of preventing them. They may be acting immorally, and they expose themselves to the peril of war, but they no more infringe a law than a private person who refuses to pay a debt of honour. In the next place, every State has laws or usages relating to the dealings of its subjects with foreigners. Some of these are founded on mutual agreement in the form of treaties, some on general principles of equity or convenience which are likely to be valid everywhere, and so there arises something like a consensus of nations on these subjects. In none of these cases, however, is there any relation between nations as such, independently of commercial or extradition treaties, and the like ; nor is there any sort of obligation on them to conform to a common standard. It is quite possible, for instance, that two persons of different nations may be legally married according to the laws of the one country, and unmarried according to the other, nor can it be otherwise so long as nations continue to differ in religion and social organization. Neither treaties nor the private relations of citi- zens of different countries, however, are subjects of what is most generally understood by international law, which is the theory of the obligations, moral or conventional, by which every civilized nation is supposed to be bound in its relation towards every other. These are, of course, not strictly obligations at all ; they are merely rules, some of them marally right, some of them indifferent, which have been found to conduce to the general advantage, and though jurists may attempt to found them on abstract reasoning, or on some form of legal fiction, they have in truth no other founda- tion than usage. That usage has grown up, in great measure, through the recognition by the nations of Europe of the brother- hood of all men in Christianity, and it has gradually been formu-
larized by great jurists, and improved as one nation or another made an innovation in the direction of humanity or unselfishness, but it has no binding force beyond the sense of right or the per- ception of utility which pervades the various communities. It is said, for instance, to be contrary to international law, now, to put to death prisoners of war, or sell them as slaves ; but formerly this was not the case, and the change has been brought about not by any specific agreement, but by the tacit use of nations.
Morality may dictate treating prisoners after the humaner modern fashion, and no civilized nation would now dream of acting other- wise ; but we owe the improvement not to any force of inter- national law, but to the spirit of Christianity. So again justice prescribes that nations at peace with both of two belligerents should do equal justice between them, should be, in fact as well as in name, neutral ; and the general consent has allowed bellige- rents certain privileges as against neutrals, as it were in considera- tion for the unfortunate condition in which they are placed. Yet though a belligerent has just cause of complaint if neutrality is not really preserved, the neutral is in no way positively bound to fulfil its moral duty, except by regard for justice and by fear of the consequences.
In general, however, the most important international disputes arise through a belligerent and a neutral taking different views of the justice of any particular case. Both sides recognize as valid certain broad principles, founded on justice, and sanctioned by usage ; the difficulty is to determine whether, in a given instance, those principles have been obeyed. And since the two nations are in the position of parties to a civil suit, each defending his own interests and trying to show the law to be on his side, and there is no tribunal to decide between them, disputes are very apt to be terminated by policy. The claimant gives way, or some com- promise is effected for the sake of peace, leaving the merits of the case undetermined. A perusal of the memorable correspondence between Mr. Adams, the American Minister, and the English Government, with reference to the Alabama and other vessels, which is very well summarized by Mr. Dana at p. 579, will show how little in international disputes turns on principles of law, and how much on the application of them to a particular set of facts. The United States complain that England violated her neutrality by allowing ships to leave her ports for the service of the Con- federates. The English Government reply that it did its best to prevent it. The American representative says that the English Government ought to have done more, or make compensation for the failure. Thus the dispute turns really on facts, and though minor questions of law have been imported into it, though some English partizan,: have denied that selling ships of war to belli- gerents is a breach of neutrality at all, yet the real point at issue is whether or not, admitting that harm was done to the United States by English subjects, England as a nation is responsible under the circumstances. The proposal to refer the dispute to arbitration was rejected on other grounds, but there is a real diffi- culty in so doing which ought not to escape attention. When private litigants agree to abide by the judgment of an umpire, both parties are bound by the law of the land, and the umpire applies the facts to them. In international disputes, where there is no positive law, it is necessary to agree beforehand on the legal principles applicable, which would be extremely difficult, since dis- puted cases are always near the border line, or else to make the arbiter judge of law as well as facts. The latter course is one which a great nation would be very unwilling to adopt ; but it may be remarked incidentally that if ever there was a case in which it would be desirable to do so, it is in the Alabama dispute. It would be to England's ultimate advantage if every claim of the United States were allowed, and such concession made the basis of future usage. Losing her cause in one instance, she would gain a precedent which might be of in- finite value in the event of war ; and independently of mere interest, it would be setting a noble example to the world if the proudest and most tenacious of nations were to risk a blow to her dignity for the sake of international justice. Above all, it is idle to argue, in an international dispute, that a Government is bound by its own statutes. As between the executive and the legislature, this is undoubtedly true ; but foreign nations have no concern with our domestic laws, they deal with the entire nation, which is absolute over laws, as well as over the executive government. Mr. Dana states the American theory, which is also essentially the true theory, in the following words :—" Our obligation arises from the law of nations, and not from our own statutes, and is measured by the law of nations. Our statutes are only means for enabling us to perform our international duty, and not the affirmative limits of that duty. We are as much responsible for insufficient machinery, when there is knowledge and opportunity for remedying it, as for any other form of neglect. Indeed, a nation may be said to be more responsible for a neglect or refusal which is an imperial, continuous act, and general in its operation, than for neglect in a special case, which may be the fault of subordinates." Substitute "the principles of justice" for " the law of nations," which is a misleading phrase borrowed from the Roman jurists, and we have here a compendium of all international duty. The misfortune is that the nation against which another brings a complaint is itself the judge as to whether it has or has not performed its duty.
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