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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. Farrand and Nicholas. Fhiladelphia. 1810.
THIS masterly treatise is another, and most distinguished refutation of the calumnies flung from all quarters of Europe, but particularly from Great Britain, on the literature of the United States of America. The immense resources of this country for foreign trade, and its supposed inability for foreign war, have given such a spread and turn to its foreign relations, as to render maritime and political law, and particularly the conflicting pretensions of war and neutrality, objects of especial attention and pursuit; objects, which it seems, are to be attained by acuteness only, without the corroboration of force, involving perpetual diplomatick as well as private controversies, indefinitely diversified, and infinitely magnified, by the astonishing national alterations that have taken place since our entrance upon the theatre of sovereign states; and to which, therefore, all the talents of our statesmen, all the ingenuity of our lawyers, all the VOL. V.
skill and enterprise of our merchants and citizens at large, preeminently enterprising and intelligent as they are, have been incessantly directed.
When the British government, in 1805, threatened to enforce what they chose to summon from the vasty deep as the rule of 1756, the American nation unanimously raised its voice against the aggression; and from all the seaport towns addresses poured in upon the administration, signed without distinction of party, calling upon the intervention of government to ward off this insidious and destructive blow. The addresses from Boston and Baltimore, which were ascribed to Mr. Gore and Mr. Pinkney, were, above all others, distinguished for the power of argument, and animation of language, with which they maintained the attitude of opposition it became us to assume on that conjuncture. And the present president of the United States, then secretary of state, also taking up the pen, and devoting to
this momentous subject a greater portion of time than any other indi vidual had bestowed, soon after published his examination of the British doctrine, in a pamphlet, containing a very profound and temperate discussion of the question; in which he took occasion to recommend this treatise of Bynkerskoek, as the most able and impartial repository of the law of nations. To the publicist and lawyer, indeed, that recommendation was not necessary; for, though buried in a dead language, and a bad translation, yet in one or other of those shapes, this excellent treatise was to be found in most of their libraries. But considering the vast importance of being able, at a moment's warning, to arm ourselves with an authority of the first impression, whose learning and good sense have stamped upon his work a sterling weight and value universally recognised, and whose learning and good sense, though proof alike against bias and antipathy, have made him favourable to neutrals, and the champion of neutral rights, we rejoice with an exceeding great joy to meet him in a form so tangible, plain, and pleasing as the present translation; which brings his worth home to all men's bosoms, whether learned or laymen, and places his redoubtable truncheon with in the grasp of every the shallowest politician that ever grapples with an argument.
In no part of the world is the study of the law of nations so general and essential as in this country. In no other part have so much pains been taken to make it a law fundamental and supreme; and, let the prejudices of Europe sneer as they may, in no part is it so well understood or so rigidly adhered to. The constitution of the American admiralty courts is such as to promise greater justice and uniformity, in the dispensation of international law, than can be expected from any other similar tribunals; because the judges
are independent in their tenures of office, the law of nations is expressly enjoined upon them by the constitution as a paramount rule of action, appeals from their decisions lie not to the executive magistracy, or any delegation of political authority; nor is it possible for any admixture of state necessity or fleeting policy, to infuse itself into their proceed ings.
In England, where a system of municipal law, if not perfect in itself, is at least so ably and invariably administered, as to answer, perhaps, all the ends of the most perfect system, the organization of their admiralty courts is altogether political; and though politicks are a very general study in England, it is hardly conceivable how little, till very lately, that most noble and useful department of jurisprudence, in which the law of nations is deposited, was explored or exhibited. Such men as sir William Scott, who unite profound and elegant erudition with daily practice and long experience, seem to prefer, as Sallust says of the early Romans, optumus quisque facere, quam dicere; sua ab aliis benefacta laudari, quam ipse aliorum narrare malebat: That they should perform, and others report their performances, than to apply their talents for the benefit of posterity. Hence the elements of this superiour science remain to this hour, untilled by English hands; and amidst the abundance of their soil in productions of municipal law, the law of nations lies barren and uncultivated. Some ages ago, indeed, Zouch struck in with his clumsy spade, and barely turned up the earth; and nearer to our times, Lee, pilfering the gardens of Bynkershoek, and disfiguring what he had rudely gathered, passed it for his own. But Zouch has got to the highest shelf, where the dust lies thickest, whence he is never taken down, not even for a reference or citation; but reposes with the rest of the
necessary" monumental mockery," of a library. And with Lee, as we shall have frequent occasion for him in the course of our review, we seize this the earliest opportunity of breaking ground, by declaring unequivocally, sans phrase, that without understanding his subject, his author or himself, he had the (not uncommon) impudence to put off a spurious and incomplete plagiarism from Bynkershoek, as an original work of his own, which base impression continued current from the period of its emission, in 1759, until 1803, when a second edition was published [Mr. Lee, we suppose, being then no more] in which it is, even then, only half acknowledged to be "an enlarged translation of the principal part of Bynkershoek's Quæstiones Juris Publici."
The principal cause of this defect in English learning, we presume to ascribe to the limited acquaintance of most English lawyers, jurists, and statesmen, with the languages, in which the most celebrated and recognised works on the law of nations are written. The English are as remarkable for their proficiency in the dead, as for their deficiency in the living languages. There are, perhaps, no bodies of individuals in the world, so conversant with Greek and Latin, as the parliament and bar of Great Britain; nor any containing such a number, among whom there is so large a proportion unacquainted with Italian, French, Spanish, German and Dutch; few of whom enjoy the advantages of even a partial intimacy with those sources of intelligence, each one of which, without disparaging the inestimable benefits of a knowledge of the classick tongues, opens a new and inexhaustible realm of learning; causes, (as Charles V. is reported to have said) a man to be born anew, and sheds on him more practical and profitable information, than the most profound erudition in the lore of antiquity. The contempt with which
the English regard all foreign nations and idioms, and the insur mountable subdivisions of employment which prevail among them, restricting each individual to a precise avocation, have also conspired to exclude them from any excellence of attainment in the law of nations, which happens to belong to no particular profession (for even the admiralty courts are but the satellites of war) and is mostly to be found in foreign, living languages. Though there is not, strictly speaking, a single treatise on this subject, in English, so very numerous are the writers upon it, on the continent of Europe, that a German has filled two volumes with a mere account of these books, tracts, and dissertations, which are published with the title of "Literature of the Law of Nations.'
It was reserved for an American lawyer to present us with a correct and acceptable English translation of Bynkershoek, elucidated, and adapted to the present enlarged sphere of political science, by a body of notes, the offspring of extensive reading, sound judgment, great experience, and especially excellent acquirements in the particu lar subjects investigated; in which, where applause is due, either to foreign nations or ourselves, it is bestowed with an even measure; and where censure is provoked, it is in like manner laid on with an impartial hand, not regarding where it may fall; throughout which a genuine American spirit is asserted and inculcated, and associated with those correct expositions of the law of nations, that are at the same time the aim and ornament of the original work, and the policy, and vital interest of this country. Accordingly, the world, and particularly the English community, now have in Bynkershoek an author of superiour abilities, discussing principles formed and familiarized in his mind by education and his profession; by deep
study, long practice, and unbiassed judicial experience; whose station, talents, and character pliced him above the common level of common prejudices; who did not publish, till time and reflection had matured his researches; who unites a laudable love of equity with a due portion of that hardy, mental temperament, which is indispensable to an impartial commentator on laws and usages not generally known, and consider ably contested; whose work appear ed at an age when the law of nations, the rights of neutrality, and the pretensions of war were less involved and expanded than they are at present; and the fruits of whose labours have been hitherto locked up in the almost impervious recesses of a dead language, invisible to the general eye, when once partially shown, miserably mutilated, and free of access only to scholars and civilians. In his American translator we have a successour (as he may not improperly be entitled) to Bynkershoek's qualifications, living in an age when all the points of which his author treats, have been vastly enhanced in importance; in a country removed from the despotisms, which lie with an iron sway, in Eu-, rope, on both actions and opinions; where, from the bosom of a prosperous neutrality, the controversies that agitate the world, may be dispassionately surveyed; of whose law the law of nations is a fundamental part; whose citizens, from every motive of interest and ambition, emolument and pride, are incessantly striving to learn and to teach, to improve, extend, and render permanent, that law; among whom Mr. Duponceau is distinguished for ha ving made this subject his peculiar study and employment; for having adorned his library with the most celebrated treatises in the various languages, that are dedicated to it; for his uncommonly extensive and accurate knowledge of those various languages, and consequently for his
conspicuous and superiour capacity for managing and displaying such a. subject to the greatest advantage; who does not hastily transmute the treasures of his information into the first stipend, that is offered by a bookseller; but purified by time and repeated revision from the inevita ble crudities and imperfections of a first impression,
Nocturna versate manu, versate diurna, and at a proper season given to the publick, from a noble desire to instruct, and the generous ambition of an honest fame.
At such a crisis as the present, when on one side the imperial rulers of the earth, and the lords of the "ambitious ocean" on the other, are like the Heathen gods, waging their "high engendered battles, without any regard to the rights of other powers, who by side-blows are crushed in the desperate conflict; when the United States in particular who alone from their remoteness, have been saved from destruction, are made the anvil of a new and incomparably tremendous application of hostility, called belligerent, retaliation, whose strokes, falling for the most part wide of their aim, if not levelled at, at any rate light upon us, driving law, right, and neutrality out of view, it is peculiarly gratifying to have such a shield as Bynkershoek, burnished by such a master as Duponceau. It is in fact so rare, we may say unexampled, to meet a modern jurist, discussing the angry topicks of the law of nations, with candour, learning, and, dispassionateness, without some paltry prejudice or absurd antipathy, that we are ready to hail such a writer, as we would a powerful pacificator after many years of commotion and bloodshed; who, dispensing the selectest influence over benighted and infuriated empires, in a voice of authority commands peace and
In reviewing such a work, it would be presumptuous to assume
the functions of domineering criticism. In this era of universal restlessness, revolution, and usurpation, criticks, like other usurpers, have enthroned themselves on the high seats of spoliation, from whence they presume to pass sentence, mostly of damnation and combustion, sometimes of cold and dignified approval, on the lords and monarchs of letters, beings greatly their superiours, who, worsted by the perversion of the times, are forced to submit to their decision. For us, we have no such pretensions. Without wishing to make new books the mere vehicles for obtruding upon the publick our own dogmas and prepossessions; but sincerely desirous of rendering ourselves strictly ancillary to their purposes, to be their honest chronicler," and with a fair annunciation of their merits and demerits, to leave them to the judgment of their readers, we enter upon the present examination, intending to avoid, as much as may be, without confusion, all points of mere politicks, and of mere municipal jurisprudence; and directing our inquiries to the great, interesting questions of international law.
The first chapter treats of the definition and nature of war; a particular of no great interest to most readers; for though it is of moment with an author to simplify and reduce to some precise test, those ideas, from which he sets out, and which are afterwards to be enlarged upon in more various examination, yet none but a student, and very seldom a mere reader, pays much attention to this preliminary.
At the very threshold of our inquiry we are called upon to contrast the clear style and correct version of Mr. Duponceau, with the awkward and blundering translation of Lee: of which, that there may be no doubt, we beg leave to sct before
our readers the original and both translations. Bellum est eorum, qui suæ potestatis sunt, juris sui persequendi ergo, concertatis per vim vel dolum.* After citing the definitions of Cicero and Grotius, as if he took them from those authors respectively, and not as he found them in Bynkershoek, Lee proceeds: " But Mr. Bynkershoek, an author of great reputation, has given a much fuller, and I think, more perfect, definition of war, which, he says, is a contest between independent sovereigns, who. are therefore entitled to pursue their own just rights by force, or by artifice." Which uncandid and disingenuous copy has not the bare merit of being correct; but is, in several respects, untrue and absurd. Eo-, rum qui suæ potestatis sunt, is translated into independent sovereigns; whereas it plainly means only independent persons; which is clearly shown, immediately after, by the author himself, who adds "sive nempe gentium, sive singulorum hominum." The word "ergo" in this definition means "for the sake of," as Mr. Duponceau gives it; but Lee, plunging along, translates it "therefore;" thus turning a definition, which of course should not argue, into a ridiculous enthymem. Let us now hear Mr. Duponceau. "War is a contest carried on between independent persons, by force, or fraud, for the sake of asserting their rights."
Perhaps, to exclude the idea of a duel, "bodies" might be substituted with advantage for " persons:" but in the face of such authorities we even suggest with great deference. One of the best definitions we know of, not of war, but its opposite, peace, in which succinctness of expression and fulness of matter are best combined, is an incidental definition by Sal lust; who calls peace "otium ferocis," the cessation of hostilities; or leisure from that state of barbarian, untamed conflict, which seems to be