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American Versions of the International Law of Christendom: Kent, Wheaton and the Grotian Tradition

Published online by Cambridge University Press:  21 May 2009

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“The ordinary jus gentium is only a particular law, applicable to a distinct set or family of nations, varying at different times with the change in religion, manners, government, and other institutions, among every class of nations. Hence the international law of the civilized, Christian nations of Europe and America, is one thing; and that which governs the intercourse of the Mohammedan nations of the East with each other, and with Christians, is another and a very different thing. The international law of Christendom began to be fixed about the time of Grotius, when the combined influence of religion, chivalry, the feudal system, and commercial and literary intercourse, had blended together the nations of Europe into one great family. This law does not merely consist of the principles of natural justice applied to the conduct of states considered as moral beings. It may, indeed, have a remote foundation of this sort; but the immediate visible basis on which the public law of Europe, and of the American nations which have sprung from the European stock, has been erected, are the customs, usages, and conventions observed by that portion of the human race in their mutual intercourse”.

Copyright © T.M.C. Asser Press 1992

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1. Wheaton, H., Elements of International Law With a Sketch of the Science, ls edn. (1836) pp.4445.Google Scholar

2. Kent, J., 1 Commentaries on American Law 2, 2nd edn. (1832).Google Scholar

3. Miller, P., The Life of the Mind in America from the Revolution to the Civil War (1965) pp. 109, 145146.Google Scholar

4. Blackstone, W., Commentaries on the Laws of England, Vols. I–IV, 1st edn. (1765–1769).Google Scholar

5. Friedman, L.M., A History of American Law (1974 edn.) p. 290.Google Scholar

6. Janis, , op. citn. 2, at pp. 1200Google Scholar. Kent's importance, at least with respect to international law, was by no means limited to the United States. In 1866, Abdy, J.T., an English barrister and Cambridge Professor of Laws, revised Kent's 200 pages about international law for a separate English edition, assenting to the assessment of Kent ‘as the greatest jurist whom this age has produced, whose writings may safely be said to be never wrong”Google Scholar. Abdy, J.T., ed., Kent's Commentary on International Law, 1st edn. (1866).Google Scholar Abdy's Kent went into a second and revised English edition twelve years later. Kent's Commentary on International Law, 2nd edn. (1878). Even outside the English speaking world Kent's influence was not inconsiderable. A few years ago, a German Scholar concluded that the’ earliest writer to display the modern approach [to international law] was probably the American Kent', J.. Scupin, H.-V., ‘History of the Law of Nations 1815 to World War I’, 7 Encyclopedia of Public International Law (1984) pp. 179, 196.Google Scholar

7. ‘International law’ as a term first appeared in 1789 with the publication of Jeremy Benrham's Principles of Morals and Legislation and was not originally synonymous with the traditional notion of the ‘law of nations’. Janis, M.W., ‘Jeremy Bentham and the Fashioning of “International Law’”, 78 AJIL (1984) p. 405.Google Scholar However, by the early 19th century, Americans, like others, were beginning to employ the ‘law of nations’ and ‘international law’ interchangeably; Kent was no exception. See Janis, , op. cit. n. 2, at, e.g., pp. 4, 6, 20.Google Scholar

8. Janis, , op. cit n. 2, at pp. 12.Google Scholar

9. Janis, , op. cit. n. 4, Vol. IV, at p. 67.Google Scholar

10. See Respublica v. De Longchamps, 1 U.S. (1 DalL) 111 (1784).

11. Janis, , op. cit. n. 2, at p. 19.Google Scholar

12. Janis, , op. cit n. 4, Vol. IV, at pp. 6673.Google Scholar

13. Idem, Vol. I, at p. 42. In Blackstone's ‘Introduction’ the law of nations had only a fleeting appearance as a law regulating the ‘mutual intercourse’ of different societies and depending ‘entirely upon the rules of natural law, or uponmutual compacts, treaties, leagues, and agreements between these several communities’. Ibid.

14. Bentham, J., ‘A Comment on the Commentaries’, in Burns, J.H. and Hart, H.L.A., eds., A Comment on the Commentaries and a Fragment on Government (1977) p. 37. Bentham had missed the point. A critique of Bentham on Blackstone is to be found in Janis, loc. cit n. 7, at pp. 405408.Google Scholar

15. Janis, , op. cit. n. 3, at p. 166.Google Scholar

16. Janis, , op. cit. n. 2, at p. 2.Google Scholar

17. Ibid.

18. Idem at pp. 2–3.

19. Idem at pp. 3–4.

20. Idem at p. 4.

21. Ibid.

22. Idem at pp. 5–6.

23. Idem at p. 7.

24. Ibid.

25. Idem at pp. 7–8.

26. Idem at p. 8.

27. Ibid.

28. Idem at pp. 9–10.

29. Idem at p. 10.

30. Ibid.

31. Idem at p. 15.

32. de Vattel, E., The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1797 edn.).Google Scholar

33. Starke, J.G., ‘The Influence of Giotius Upon die Development of International Law in the Eighteenth Century’, in Alexandrowicz, C.H., ed., 2 Studies in the History of the Law of Nations, Grotian Society Papers (1972) pp. 162176.Google Scholar

34. Ruddy, F.S., ‘The Acceptance of Vattel’, in Alexandrowicz, ed., op. cit. n. 33, pp. 177, 178179.Google Scholar In fads new and revised edition of Vattel in 1834, Joseph Chitty wrote of Vattel's ‘pre-eminent importance’ and ventured the speculation ‘that every one who has attentively read this work, will admit mat he has acquired a knowledge of superior sentiments, and more important information, than he ever derived from any other work’. de Vattel, E., The Laws of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns iii, Chitty, J., ed. (1834).Google Scholar

35. Janis, , op. cit. n. 2, at pp. 1516.Google Scholar

36. Grotius, H., De Jure Belli Ac Pacis Libri Tres 20 (Prolegomena Sections 28,29) (The Classics of International Law, Kelsey, F.W. trans. (1913)).Google Scholar

37. Janis, , op. cit n. 2, at p. 15.Google Scholar

38. Janis, M.W., An Introduction to International Law (1988) pp. 36, 914, 3538.Google Scholar

39. Nussbaum, A., A Concise History of the Law of Nations, rev. edn. (1962) pp. 116.Google Scholar

40. Kunz, J.L., ‘NaturalI^wThinkingintheModernScienceofInternationalLaw’, 55 AJIL (1961) p. 951.Google Scholar

41. James Brown Scott wrote that ‘Not the least of Vitoria's glories is that he gave us the definition of International Law’. Scott, however, made no explicit claim that Vitoria was the ‘father’ of international law, only that Vitoria extended the ‘international community of states … beyond the familiar confines of Christendom, thus including in the community of nations the American principalities, with equal rights and equal duties for each and every state, whether Christian or barbarian’. Scott, J.B., ‘Vitoria and International Law’, in Wright, H., ed, Francisco Vitoria: Addresses in Commemoration of the Fourth Century of his Lectures ‘De Indis' and ‘De Jure Belli’ 1532–1932 (1932) pp. 3743.Google Scholar

42. Janis, , loc. cit. a 40, at pp. 951952.Google Scholar

43. Janis, , ‘The Discourses’, in Machiavelli, N., The Prince and the Discourses (Lerner, M., ed. (1950) Detmold bans.) pp. 99, 284285.Google Scholar

44. Janis, , ‘The Prince’, in Lemer, , ed., Ricci and Vincent trans., op. cit. n. 43, pp. 1, 64.Google ScholarMachiavelli, felt that ‘leagues and alliances with republics are more to be trusted than those with princes’. Machiavelli's Discourses, loc. cit n. 43, at p. 266.Google Scholar

45. Vreeland, H., Hugo Grotius (1917) pp. 68120Google Scholar; Dumbauld, E., The Life and Legal Writings of Hugo Grotius (1969) pp. 1119.Google Scholar

46. Janis, , op. cit. n. 36, at pp. 219361 (Book II, Chapters 11,12).Google Scholar

47. Idem at p. 372 (Book II, Chapter 13).

48. Idematpp. 391,391–408 (Bookll, Chapter 15).

49. Idem at p. 409 (Book II, Chapter 16).

50. Idem at p. 804 (Book III, Chapter 20).

51. Weber, M., The Protestant Ethic and the Spirit of Capitalism (Parsons trans. (1958)) p. 165.Google Scholar

52. Treaties of Peace between Sweden and the Holy Roman Empire and between France and the Holy Roman Empire, October 14,1648,1 CTS 119–356.

53. Janis, , op. cit. n. 38, at pp. 131132.Google Scholar

54. Janis, , op. cit. n. 32, at pp. lviii, lxiii.Google Scholar

55. Janis, , op. cit. n. 3, at p. 166.Google Scholar

56. Rousseau, J. J., ‘The Social Contract’, The Social Contract and Discourses (bk. II, ch. XII) (Cole trans. (1950)) pp. 5253.Google Scholar

57. He complained that the Christian religion separated ‘the theological from the political system’ so that ‘men have never succeeded in rinding out whether they were bound to obey the master or the priest’. Idem at pp. 133, 132 (bk. IV, ch. VII).

58. Janis, , op. cit. n. 2, at p. 2.Google Scholar

59. Idem at p. 20.

60. Austin, J., The Province of Jurisprudence Determined, 1st edn. (1832) p. vii.Google Scholar

61. Idem at pp. 146–147.

62. Idem at pp. 207–208.

63. Wheaton's Reports spanned the period 1816–1827, and now constitute volumes 14 to 25 of the collected US Reports.

64. Wheaton’s International Law, op. cit. 1, at p. iii. Wheaton's historical ‘Sketch’ disappeared in later editions of the Elements but re–emerged in a more comprehensive form in 1845 when Wheaton published his History of the Law of Nations in Europe and America; from the Earliest Times to the Treaty of Washington, 1842 (1845).Google Scholar

65. Wheaton's International Law, op. cit. n. 1, at pp. 46–47.

66. Ibid. Wheaton cited Bentham's Principles of Morals and Legislation. Idem at p. 47. I have written elsewhere about how Bentham, unlike Austin, later answered the law-like question in favor of international law. Janis, , loc. cit. n. 7, at pp. 410412.Google Scholar

67. Wheaton's International Law, op. cit n. 1, at p. 47. The Austin excerpts are in Janis, , op. cit n. 60, at pp. 146147, 207208.Google Scholar

68. Wheaton's International Law was remarkably successful. Between his first American and English editions in 1836 and his death in 1848, Wheaton himself prepared numerous editions in English and French. William Beach Laurence prepared revised American editions of Wheaton in 1855, 1857, 1863, and 1864. Richard Henry Dana, Jr., followed in 1866 with an American edition later chosen by the Carnegie Foundation as the definitive Wheaton for their Classics of International Law in 1936. There were English editions in, at least 1878, 1880, 1889, 1904,1916, and 1929. Revised French editions appeared in 1852, 1858, 1864 and 1878. An Italian edition was published in 1860. Wheaton was translated into Chinese in an 1864 edition and into Japanese in 1865. Wilson, G.G., ‘Henry Wheaton and International Law', in Dana's, R.H. 1936Google Scholar reproduction of the 1866 edition of Wheaton, H., Elements of International Law, pp. 13a17a. In 1870Google Scholar, Wheaton's book was singled out as enjoying ‘both here [in England] and at home a well deserved eminence’. Abbott, A., ‘European Letter’, 2 Albany LJ (1870) p. 201.Google Scholar As late as 1944, Wheaton was thought to be of current value. Anew English edition, albeit much revised over 108 years, then appeared covering mat part of Wheaton on the laws of war. Keith, A.B., Wheaton's International Law: Vol. 2 7mdash; War (1944).Google Scholar

69. Wheaton's International Law, op. cit. n. 1, at pp. iii–iv.

70. Wheaton's History, op. cit. n. 64, at pp. iii–iv. Wheaton's quotation of Austin is cited directly to ‘Austin, Province of Jurisprudence determined, pp. 147–148’. Idem at p. iv.

71. Idem at p. iv.

72. Wheaton's International Law, op. cit n. 1, at p. iii.

73. Idem at p. 17.

74. Idem at p. 18.

75. Idem at pp. 18–19.

76. Idem at p. 21.

77. Idem at pp. 21–22.

78. Idem at 22–23.

79. Idem at p. 23.

80. Idem at pp. 24–25.

81. Idem at p. 26.

82. Ibid.

83. Idem at p. 27.

84. Ibid.

85. Idem at p. 28.

86. Idem at p. 29.

87. Idem at p. 30.

88. Ibid.

89. Idem at pp. 35–78.

90. Idem at p. 38.

91. Ibid.

92. Idem at p. 39.

93. Idem at p. 43.

94. Ibid.

95. Idem at pp. 43–44.

96. Idem at p. 44.

97. Idem at pp. 44–45. The fuller text is given in the prefatory quotation.

98. Idem at p. 46.

99. Idem at p. 43.

100. See, e.g., his discussion of the ‘Lawfulness of War’, Janis, , op. cit. n. 36, at pp. 3154 (Book I, Chapter 2).Google Scholar

101. Idem at p. 160 (Book n, Chapter 13, Section 1).

102. Idem at p. 172 (Book n, Chapter 15, Section 8).

103. Idem at pp.172–173 (Book n, Chapter 15, Sections 8–9).

104. Idem at p. 380 (Book m, Chapter 19, Section 2).

105. Idem at p. 417 (Book m, Chapter 25, Section 1).

106. Kennan, G., American Diplomacy 1900–1950 (1951) p. 82.Google Scholar

107. Kennan, G., ‘Morality and Foreign Policy’, Foreign Affairs (1985/1986) pp. 205, 207.Google Scholar

108. I elsewhere discuss the 19th century Christian reformers in England and the United States and their promotion of public international arbitration and permanent international courts. Janis, , op. cit. n. 38, at pp. 91100Google Scholar; Janis, M.W., ‘Protestants, Progress and Peace’, in Janis, M.W., ed., The Influence of Religion on the Development of International Law (1991) pp. 223242.Google Scholar

109. Janis, , op. cit. n. 106, at p. 83.Google Scholar

110. Ibid.

111. Idem at p. 87.

112. Idem at p. 85.

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