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ART. V. - Elements of International Law. By HENRY WHEA

Eighth Edition. Edited, with Notes, by RICHARD HENRY DANA, Jr., LL. D. Boston: Little, Brown, & Co. 1866. 8vo. pp. xlvii., 749.


This book has not been given to the world too soon. The original work was first published in 1836; the edition embodying the author's latest additions followed in 1846. The character of Mr. Lawrence's ponderous and evil-disposed labors in 1863 will justify us in laying his edition quite aside. The work, then, as it has come down to us from Mr. Wheaton's own hands, though constructed upon a superior plan to any other treatise on the same subject, yet leaves the events of a wide and stirring period to be chronicled. The science of international law is daily growing, varying, advancing ; especially of late years its developments have been rapid, numerous, and important to an extraordinary degree. The Ultima Thule of the wisdom of the last generation seems but a milestone long since passed in our quick career. The civil war in this country has alone been as prolific of new complications, new questions, new views, as half a century of former days. In no study, we venture to say, does the advance of the Christian nations of the world in civilization and in that public morality which is, after all, only the conglomerate of countless individual moralities, more clearly show itself than in that of international law. There we see a steady progress ; each generation of publicists, of statesmen, even of warriors, demonstrates equally in word and deed an increasing respect for the abstract principles of humanity and justice, a greater reverence for the peaceful dictates of law. Reason steadily gains ground; violence as steadily recede Thus, since each important change is tolerably sure to be for the better, it is of the utmost importance to the interests of humanity that each change should be quickly laid fast hold of, and reduced into the written code of the law of nations.

We are glad to be able to say that, in the work before us, the enlightened and humane temper of Mr. Dana is no less conspicuous than his erudition and discretion. His numerous and elaborate notes, some of them extending to the length of thirty closely printed pages, form, as it were, a series of essays setting forth the divers novelties and changes introduced into the science within the last twenty years. Mr. Dana shows a peculiar felicity in preserving the same just appreciation of relative values which is a distinguishing excellence of Wheaton's original work. He seems gifted with an apt discretion, which, like an instinct of the intellect, guides him in a wise selection and just proportioning of his matter, and which prominently appears in the skilful mingling of the theories of the ancient publicists, the precedents afforded by history, the decisions of legal tribunals, the discussions of statesmen, and his own opinions upon new or disputed points.

In the works of Grotius, Vattel, and others of the time-honored writers, - we may well call them the fathers of the science, there is unavoidably a theorizing, impractical tone, an appearance as of the expression of individual notions of sound sonse and justice, oftentimes somewhat Utopian, and certainly more like the wisdom of learned scholars than of men conversant with the ambition of soldiers, the negotiations of diplomatists, or the enterprise of merchants. But International Law now not only allows, but demands, a different mode of treatment; we require now not so much individual speculation and theories of abstract justice as a thorough and exhaustive compilation of instances, and an acute and critical analysis of principles. We wish to know both what things have been done, and upon what principle they have been done; under what circumstances they were undertaken by the one party and submitted to by the other; and, finally, we need a judicial summary of their precise value as precedents. A work executed with ability, for the satisfaction of these objects, will answer one of the most important wants of the times. Such we regard the work which Mr. Dana has accomplished. His notes are remarkable for clearness alike in statement and in argument. His style is distinguished by accuracy, never pruned into meagreness, never bursting into redundancy, which is doubtless the result of his long and careful professional training. Even when tracing the thread of strict legal reasoning, he preserves that lucidity of expression and of logical sequence which renders his meaning comprehensible to every reader.

It is a general impression that the necessity which the lawyer is under of representing only one side, must be either the cause or the result of a habit of seeing only one side. No notion can be more incorrect. It is no less the lawyer's function to anticipate the opposite side, than it is to set forth his own; he must refute opposing arguments, and to refute he must foresee. A well-trained lawyer then, in any case where he is not misled by personal passion and prejudice, will readily throw off the spirit of advocacy and assume the equity of the judge. But where he is under the influence of personal passion or prejudice, he will doubtless prove himself subject, like the rest of us, to a greater or less degree of human frailty, according to his temperament and his self-control. Mr. Dana has been subjected to a peculiarly severe trial of this nature. It has been his duty to state and to discuss the numerous points which have been raised in our late civil war. Upon the one shore the miserable wreck of his predecessor furnished him with an ominous warning; but on this rock there was little need of a beacon to admonish him, — his danger lay on the other quarter. Even such language as would well become a history would be wholly out of place and inexcusable in a legal treatise, where the picturesque qualities of light and shade, however truthful, and vivid representation, however lifelike, are altogether inadmissible. Forgiveness should certainly be accorded to an only moderate bias, but in truth we can see no call for charity; the judicial impartiality which is preserved throughout these notes seems little short of a miracle of self-control. Certainly the value and the temper of the editor's work will meet with entire commendation in all countries in the second and third generations hence. No one will then discover, except as a matter of history, that this contemporary annotator was himself, as it were, a party contestant in the grand struggle of which he writes with such judicial coolness.

It is true that a comparatively large space is allotted to the discussion of these American points, but perhaps not unduly. We must consider that these questions arose out of a rebellion in one of the leading powers of the world, not only of unexampled magnitude, but also of a peculiar nature. It was not a revolt against a monarchy, of which the precedents are numerous and the features necessarily for the most part familiar, but a secession of certain organized parts of a commonwealth from the major part thereof, a matter without precedent, and presenting an aspect wholly novel. Further, the questions arising between this country and Great Britain were of more than usual importance, as being of a nature likely to repeat themselves in all wars which may occur between civilized nations for a long period to come. They arose between the two great maritime powers of the earth, who in such cases must be expected to lay down the law for others : they were fully discussed, by no means in a spirit of amity, and by nations so proud and so well matched that no decision can wear the appearance of an erroneous result brought about by the influence of fear or prudence. Finally, it is a general principle, that the newest law is for the time the most valuable ; it is the result and embodiment of much of the old law ; it is the exponent of the latest views and principles ; it has not yet been so tested that its exact force and value are known, and may be stated in a sentence, but it needs to be fully studied in all its attendant circumstances. In view of these considerations, we may safely conclude that the notes on American points are not, as a general rule, unduly elaborate, but that they simply meet fairly the natural exigencies of the subject. Moreover, in international law, the practical result is apt to have great influence in fixing the legal value of the event. We have attained a result so decisive and so contrary to that anticipated by the most eminent European publicists, no less than by Mr. Lawrence, that it is well to have the arguments which they have been busied for five years or more in inculcating elaborately answered and conclusively refuted.

The first note which by its length and value attracts our attention is that upon the “Monroe Doctrine.” The subject, of course, is full of interest, not only for its past associations with our national history, but for its bearing upon present circumstances and its inevitable connection with many questions which must hereafter arise in the career of this country. In the frequent discussions concerning the present aspect of affairs in Mexico, the position which it is incumbent upon the United States to assume, and the relations which it is her right, her policy, or her duty to maintain with France and the Imperial faction, the Monroe doctrine is a phrase on everybody's lips, and is used by the advocates of interference as a name to conjure with. The story of its birth and growth will then naturally be just now listened to with even more than ordinary attention. We use the term growth advisedly: for, as Mr. Dana shows, it has verily grown; and the Message of President Monroe contained only the germ of that theory, which, at least in the mouths of the many, is now intended by the words. From the connection in which the phrase is now used, - even by educated and well-read persons, - and from the inferences and arguments

which they found upon it, it may be safely concluded that the present popular notion of its meaning is nearly this : that it lays down as the policy of the United States a double rule, whereof the first subdivision prohibits our government from interfering in the wars and entanglements, or becoming party to the internal offensive and defensive alliances of European powers; and the second subdivision enjoins upon us to allow no intervention by European powers in the affairs of American states, excepting, of course, such parts of either of the American continents as are already the rightful dependencies of European crowns. The underlying principle of this latter injunction is generally understood to be, that, as the United States is the grand example, and may naturally be regarded as the protectress, of popular governments, and as, on the other hand, the European powers stand in the same relations to the monarchical and despotic principle of government, therefore it will be not only generous, but also wise and politic, for the United States to preserve this Western hemisphere, so far as possible, free from the control and invasion of European principles, and to lend the peoples thereof such countenance, aid, and protection as they may require in the establishment and maintenance of republican and democratic systems; and further, to this end, that we must constitute ourselves the watchful guardians of our weaker sisters, and hold ourselves ever ready to interfere in their behalf whenever European armies or diplomacy threaten the subversion of their domestic government. It is then but a step to insist on this principle as a component part of the doctrine itself; and we already find that many persons consider

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