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FOR JANUARY, 1811.
[FOR THE SELECT REVIEWS.] A Treatise on the Law of War, translated from the original Latin of Cornelius Van
Bynkershoek; being the first book of his Quæstiones Juris Publici, with Notes. By Peter Stephen Duponceau, Counsellor at Law in the Supreme Court of the United States of America. 8vo. pp. 218. Farri nd and Nicholas. Fhiladelphia. 1810.
THIS masterly treatise is ano- skill and enterprise of our merchants ther, and most distinguished refuta- and citizens at large, preeminently tion of the calumnies flung from all enterprising and intelligent as they quarters of Europe, but particularly are, have been incessantly directed. from Great Britain, on the literature When the British government, in of the United States of America. 1805, threatened to enforce what The immense resources of this they chose to summon from the vasty country for foreign trade, and its deep as the rule of 1756, the Amesupposed inability for foreign war, rican nation unanimously raised its have given such a spread and turn voice against the aggression; and to its foreign relations, as to render from all the seaport towns addresses maritime and political law, and par- poured in upon the administration, ticularly the conflicting pretensions signed without distinction of party, of war and neutrality, objects of calling upon the intervention of goespecial attention and pursuit ; ob- vernment to ward off this insidious jects, which it seems, are to be at- and destructive blow. The address. tained by acuteness only, without es from Boston and Baltimore, which the corroboration of force, involving were ascribed to Mr. Gore and Mr. perpetual diplomatick as well as pri- Pinkney, were, above all others, vate controversies, indefinitely diver. distinguished for the power of argusified, and infinitely magnified, by ment, and animation of language, the astonishing national alterations with which they maintained the atthat have taken place since our en- titude of opposition it became us trance upon the theatre of sovereign to assume on that conjuncture. And states; and to which, therefore, all the present president of the United the talents of our statesmen, all the States, then secretary of state, also ingenuity of our lawyers, all the taking up the pen, and devoting to
this momentous subject a greater are independent in their tenures of portion of time than any other indi. office, the law of nations is express. vidual had bestowed, soon after pub- ly enjoined upon them by the con. lished his examination of the British stitution as a paramount rule of acdoctrine, in a pamphlet, containing tion, appeals from their decisions lie a very profound and temperate dise not to the executive magistracy, or cussion of the question; in which he any delegation of political authority; took occasion to recommend this nor is it possible for any admixture treatise of Bynkerskoek, as the most of state necessity or fleeting policy, able and impartial repository of the to infuse itself into their proceedlaw of nations. To the publicist ings. and lawyer, indeed, that recommen. In England, where a system of dation was not necessary; for, though municipal law, if not perfect in itburied in a dead language, and a self, is at least so ably and invariably bad translation, yet in one or other administered, as to answer, perhaps, of those shapes, this excellent trea- all the ends of the most perfect systise was to be found in most of their tem, the organization of their admilibraries. But considering the vast ralty courts is altogether political; importance of being able, at a mo- and though politicks are a very genement's warning, to arm ourselves ral study in England, it is hardly with an authority of the first im- conceivable how little, till very pression, whose learning and good lately, that most noble and useful sense have stamped upon his work a department of jurisprudence, in sterling weight and value universalwhich the law of nations is depoly recognised, and whose learning sited, was explored or exhibited. and good sense, though proof alike Such men as sir William Scott, who against bias and antipathy, have unite profound and elegant erudition made him favourable to neutrals, with daily practice and long expeand the champion of neutral rights, rience, seem to prefer, as Sallust we rejoice with an exceeding great says of the early Romans, optumus joy to meet him in a form so tangi- quisque facere, quam dicere; sua ab ble, plain, and pleasing as the pre- aliis benefacta laudari
, quam ipse sent translation; which brings his aliorum narrare malebat: That they worth home to all men's bosoms, should perform, and others report whether learned or laymen, and pla- their performances, than to apply ces his redoubtable truncheon with their talents for the benefit of poste. in the grasp of every the shallowest rity. Hence the elements of this politician that ever grapples with an superiour science remain to this argument.
hour, untilled by English hands; and In no part of the world is the stu. amidst the abundance of their soil dy of the law of nations so general in productions of municipal law, the and essential as in this country. In law of nations lies barren and unno other part have so much pains cultivated. Some ages ago, indeed, been taken to make it a law funda- Zouch struck in with his clumsy mental and supreme; and, let the spade, and barely turned up the prejudices of Europe sneer as they earth; and nearer to our times, Lee, may, in no part is it so well under- pilfering the gardens of Bynkerstood or so rigidly adhered to. The shoek, and disfiguring what he had constitution of the American admi- rudely gathered, passed it for his ralty courts is such as to promise own. But Zouch has got to the highgreater justice and uniformity, in est shelf, where the dust lies thickthe dispensation of international law, est, whence he is never taken down, than can be expected from any other not even for a reference or citation; similar tribunals; because the judges but reposes with the rest of the
necessary « monumental mockery," the English regard all foreign na. of a library. And with Lee, as we tions and idioms, and the insurshall have frequent occasion for him mountablé subdivisions of employin the course of our review, we ment which prevail among them, seize this the earliest opportnnity of restricting each individual to a prebreaking ground, by declaring une- cise avocation, have also conspired quivocally, sans phrase, that without to exclude them from any excellence understanding his subject, his au:hor of attainment in the law of nations, or himself, he had the (not uncom. which happens to belong to no parmon) impudence to put off a spu- ticular profession (for even the adrious and incomplete plagiarism miralty courts are but the satellites from Bynkershoek, as an original of war) and is mostly to be found in work of his own, which base im- foreign, living languages. Though pression continued current from the there is not, strictly speaking, a period of its emission, in 1759, until single treatise on this subject, in 1803, when a second edition was English, so very numerous are the published (Mr. Lee, we suppose, writers upon it, on the continent of being then no more] in which it is, Europe, that a German has' filled even then, only half acknowledged two volumes with a mere account to be “ an enlarged translation of of these books, tracts, and disserthe principal part of Bynkershoek's tations, which are published with Quæstiones Juris Publici."
the title of “ Literature of the Law The principal cause of this defect of Nations.' in English learning, we presume to It was reserved for an American ascribe to the limited acquaintance lawyer to present us with a correct of most English lawyers, jurists, and and acceptable English translation statesmen, with the languages, in of Bynkershoek, elucidated, and a- which the most celebrated and recog- dapted to the present enlarged nised works on the law of nations sphere of political science, by a are written. The English are as body of notes, the offspring of exremarkable for their proficiency in tensive reading, sound judgment, the dead, as for their deficiency in great experience, and especially exthe living languages. There are, cellent acquirements in the particuperhaps, no bodies of individuals in lar subjects investigated; in which, the world, so conversant with Greek where applause is due, either to and Latin, as the parliament and bar foreign nations or ourselves, it is of Great Britain; nor any containing bestowed with an even measure; and such a number, among whom there where censure is provoked, it is in is so large a proportion unacquain- like manner laid on with an imparted with Italian, French, Spanish, tial hand, not regarding where it German and Dutch; few of whom may fall; throughout which a genuenjoy the advantages of even a par. ine American spirit is asserted and tial intimacy with those sources of inculcated, and associated with those intelligence, each one of which, correct expositions of the law of nawithout disparaging the inestimable tions, that are at the same time the benefits of a knowledge of the clas. aim and ornament of the original sick tongues, opens a new and inex- work, and the policy, and vital inhaustible realm of learning; causes, terest of this country. Accordingly, (as Charles V. is reported to have the world, and particularly the Ensaid) a man to be born anew, and glish community, now have in Bynsheds on him more practical and kershoek an author of superiour abiprofitable information, than the most lities, discussing principles formed profound erudition in the lore of and familiarized in his mind by eduantiquity. The contempt with which cation, and his profession; by deep
study, long, practice, and unbiassed conspicuous and superiour capacity judicial experience; whose station, for managing and displaying such a talents, and character placed him subject to the greatest advantage; above the common level of common who does not hastily transmute the prejudices; who did not publish, till treasures of his information into the time and reflection had matured his first stipend, that is offered by a researches; who unites a laudable bookseller; but purified by time and love of equity with a que portion of repeated revision from the inevita-, that hardy, mental temperament, ble crudities and imperfections of a which is indispensable to an impar- first impression, tial commentator on laws and usages Nocturna versate manu, versate diurna, not generally known, and consider.
and at a proper season given to the ably contested; whose work appear- publick, from
publick, from a noble desire to ed at an age when the law of na- instruct, and the generous ambition tions, the rights of neutrality, and of an honest fame. the pretensions of war were less At such a crisis as the present involved and expanded than they are when on one side the imperial rulers at present; and the fruits of whose of the earth, and the lords of the labours have been hitherto 'locked « ambitious, ocean" on the other, up
in the almost impervious ręcesses are like the Heathen gods, waging of a dead language, invisible to the their “ high engendered battles, general eye, when once partially without any regard to the rights of shown, miserably mutilated, and other powers, who by side-blows free of access only to scholars and are crushed in the desperate conflict; civilians. In his American transla- when the United States in particu-, tor we have a successour (as he may lar who alone from their remotenot improperly be entitled) to Byn- ness, have been saved from destruckershoek's qualifications, living in tion, are made the anvil of a new. an age when all the points of which and incomparably tremendous appli. his author treats, have been vastly, cation of hostility, called belligerent; enhanced in importance; in a coun- retaliation, whose strokes, falling try removed from the despotisms, for the most part wide of their aim, which lie with an iron sway, in Eu-, if not levelled at, at any rate light rope, on both actions and opinions; upon us, driving law, right, and where, from the bosom of, a pros- neutrality out of view, it is peculi. perous neutrality, the controversies, arly gratifying to have such a shield that agitate the world, may be disc as Bynkershoek, burnished by such passionately surveyed; of whose law a master as Duponceau. It is in fact the law of nations is a fundamental so rare, we may say unexampled, part; whose citizens, from every to meet a modern jurist, discussing motive of interest and ambition, e. the angry topicks of the law of namolument and pride, are incessantly tions, with candour, learning, and striving to learn and to teach, to dispassionateness, without some palimprove, extend, and render per. try prejudice or absurd antipathy, manent, that law; among whom Mr. that we are ready to hail such a wriDuponceau is distinguished for ha- ter, as we would a powerful pacifiving made this subject his peculiar cator after many years of commotion study and employment; for having and bloodshed; who, dispensing the adorned his library with the most selectest influence over benighted celebrated treatises in the various and infuriated empires, in a voice languages, that are d edicated to it; of authority commands peace and for his uncommonly extensive and eason. accurate knowledge of those various In reviewing such a work, it languages, and consequently for his would be presumptuous to assume the functions of domineering criti. our readers the original and both çism. In this era of universal reste translations. Bellum est eorum, qui lessness, revolution, and usurpation, suæ potestatis sunt, juris sui perse, criticks, like other usurpers, have quendi ergo, concertatis per vim vel enthroned themselves on the high dolum.* After citing the definitions seats of spoliation, from whence of Cicero and Grotius, as if he took they presume to pass sentence, them from those authors respectivemostly of damnation and combus- ly, and not as he found them in tion, sometimes of cold and digni. Bynkershoek, Lee proceeds: “ But fied approval, on the lords and mo- Mr. Bynkershoek, an author of great narchs of letters, beings greatly reputation, has given a much fuller, their superiours, who, worsted by and I think, more perfect, definition the perversion of the times, are for- of war, which, he says, is a contest ced to submit to their decision. For between independent sovereigns, who. us, we have no such pretensions. are therefore entitled to pursue Without wishing to make new books their own just rights by force, or by the mere vehicles for obtruding artifice.”+ Which uncandid and disupon the publick ourown dogmas and ingenuous copy has not the bare meprepossessions; but sincerely desi. rit of being correct; but is, in severous of rendering ourselves strictly ral respects, untrue and absurd. Eoancillary to their purposes, to be rum qui suæ potestatis sunt, transtheir “ honest chronicler," and with lated into independent sovereigns; a fair annunciation of their merits whereas it plainly means only indeand demerits, to leave them to the pendent persons; which is clearly judgment of their readers, we enter shown, immediately after, by the upon the present examination, in- author himself, who adds « şive tending to avoid, as much as may nempe gentium, sive singulorum ho. be, without confusion, all points of minum.” The word “ ergo" in this mere politicks, and of mere munici- definition means “ for the sake of,* pal jurisprudence; and directing our as Mr. Duponceau gives it; but Lee, inquiries to the great, interesting plunging along, translates it “therequestions of international law. fore;" thus turning a definition,
which of course should not argue, CHAPTER I.
into a ridiculous enthymem. Let us The first chapter treats of the de- now hear Mr. Duponceau. « War is finition and nature of war; a parti- a contest carried on between indecular of no great interest to most pendent persons, by force, or fraud, readers; for though it is of moment for the sake of asserting their with an author to simplify and reduce rights.” to some precise test, those ideas, from Perhaps, to exclude the idea of a which he sets, out, and which are duel, “bodies” might be substituted afterwards to be enlarged upon in with advantage for “ persons:" but more various examination, yet none in the face of such authorities we but a student, and very seldom a even suggest with great deference. mere reader, pays much attention One of the best definitions we know to this preliminary.
of, not of war, but its opposite, peace, At the very threshold of our in- in which succinctness of expression quiry we are called upon to contrast and fulness of matter are best combithe clear style and correct version ned, is an incidental definition by Salı of Mr. Duponceau, with the awk- lust; who calls peace “otiuin ferocis, ward and blundering translation of the cessation of hostilities; or leisure Lee: of which, that there may be no from that state of barbarian, undoubtă we beg leave to sct before tamed conflict, which seems to be
* Bynkershoek. † Lee.