« iepriekšējāTurpināt »
versal knowledge, starting from the assumption that by close and skilled attention the scheme of the world might be deciphered in the spirit of man. From transcendental idealism it proceeded inevitably to pantheism; yet not in serene, self-conscious acceptance; rather in despite of itself, and against the better will of its author, who would fain have clung to what broken spars of a nobler creed had survived the tempests of his soul. Giordano Bruno was (to borrow a thought of Professor Carriere's) too much of a poet to be a philosopher, and too much of a philosopher to be a poet. He was intoxicated, just as Shelley was intoxicated, with the exclusive and overweening sense of a spiritual power in nature; but Shelley was content to feel and to sing, while Bruno was impelled to formulate. Hence his logical shipwreck amid the sunlit but inaccessible cliffs of a barren idealism.
ART. VI.-A Digest of the International Law of the United States, taken from Documents issued by Presidents and Secretaries of State, and from Decisions of Federal Courts and Opinions of Attorneys-General. Edited by FRANCIS WHARTON, LL.D., Author of A Treatise on Conflict of Laws,' and of Commentaries on American Law.' In three vols. Washington, Government Printing Office: 1886.
HIS work, which now lies before us, is another example of the superiority of American legal literature over that of this country. Among the numerous modern English works on municipal law, it is impossible not to be struck with the absence of that grasp of the subject and power of treatment which characterises the legal literature of the United States. If we look over the legal publications of recent years in this country, there are very few which have made a permanent mark-perhaps the two most noticeable are the Digest of the Criminal Law,' by Mr. Justice Stephen, and the late Mr. Benjamin's Treatise on Sale.' But to all intents and purposes the latter may be regarded as an American work, if we are comparing the legal literature of the United States and of Great Britain. The contrast is greater in the sphere of international law; and Dr. Wharton has now added another to the list of standard works which are chiefly associated with the names of Kent, Story, and Wheaton.
But though we primarily owe this work to the individual
initiative of Dr. Wharton, we are indebted for its publication to the wisdom of the Senate and House of Representatives, by whom the printing of this 'Digest' was ordered. The sources from which it is drawn are shortly and clearly explained in Dr. Wharton's preliminary remarks :
'The authorities on whom I have relied,' he writes (Preliminary Remarks, p. viii), are (1) Presidents' messages; (2) opinions and reports of Secretaries of State; (3) opinions of Attorneys-General; (4) opinions of Federal Courts; (5) papers emanating from the War, Navy, and Interior Departments; (6) unofficial letters of our leading statesmen, of which many of great importance are drawn from the Jefferson, Madison, and Monroe papers on deposit in the Department of State; (7) standard works on international law and history; as to the latter, I have, as a rule, confined myself to quotations from authors not readily accessible in this country.'
So that whilst this book contains definite propositions of international law and conduct, as laid down by American judges and statesmen, and in this sense is essentially a digest of international law, it is at the same time a collection of public documents and extracts of the highest historical value. No more interesting volume has been published than this since the unrivalled papers of Hamilton, Madison, and Jay on the Constitution of the United States saw the light in the Federalist.'
The external history of the United States has been essentially, if we may so express it, a legal history; for the most important occurrences in connexion with the relations between the Republic and foreign powers have turned on questions of international law. Thus the most serious disputes in recent years with this country have depended on the construction of the Clayton-Bulwer Treaty of 1850, on the right of the citizens of the United States to fish in Canadian waters, and of the United States to seize despatches and emissaries of a Government with which they were at war, on a mail packet, which was raised in the affair of the Trent.' Each one of these was in reality a question not of simple diplomacy, but of international law. Again, although the indisposition of the United States to tolerate French intervention in Mexico, in 1866, at first sight may be regarded as a question of political expediency and of possible injury to national interests, it also is concerned with a point of international law. We recognise 'the right of sovereign nations to carry on war with each other, if they do not invade our right or menace our 'safety or just influence.' In this very pithy sentence,
in a despatch to M. de Montholon, on December 6, 1865, Mr. Seward practically rested the American case against the intervention of France in Mexican affairs on the principle of the Monroe doctrine. The most striking words of President Monroe's celebrated message were that his Government 'could 'not view any interposition for the purpose of... controlling in any other manner their destiny (i.e. of the South American States), by any European power, in any other light than as the manifestation of an unfriendly disposition towards the United States.' So recently as January 1883, Mr. Frelinghuysen refused to sanction an arbitration by European States for the settlement of South American difficulties, even with the consent of the parties, on the ground that the decision of American questions pertains to America ' itself.' This, again, was a question of the applicability of the Monroe doctrine to the particular subject. It has been said by some writers on international jurisprudence that the Monroe doctrine has not been accepted by the American people. Mr. Woolsey sums up his views by saying, On the whole, then, (1) the doctrine is not a national one;' but a principle which has been acted on since the year 1823, it is true with greater stringency and force in some instances than in others, which has been the polestar of the American statesmen in their dealings with European powers in all matters connected with the intervention of such powers in the affairs of the American continent, must be regarded by the impartial observer not only as a national principle of policy, but as one which has had the most important consequences. We shall have occasion hereafter to point out how this doctrine has been the basis of later American action in regard to the matter of the Isthmus of Panama; we allude to it now in order to make good the position that the external policy of the United States has constantly involved the consideration of, and has primarily turned on, questions or principles of so-called international law. Thus, it must at once be obvious that the historical value of this Digest' is great. It enables the student of history to grasp, from materials grouped in a convenient form, and of the highest authority, the principles held in the United States on questions of international law; it also places before him in a more or less consecutive form the actual progress of negotiations, and the course of questions, some of which have been under discussion for considerable periods.
In form, Dr. Wharton's work may in a few words be described as a series of propositions, either in the editor's
own words, in the language of judicial decisions, or in the messages of Presidents or Secretaries of State. Sometimes these propositions are very short, and are to a certain extent exemplified by succeeding extracts from State papers. In other cases, a portion or the whole of a paper contains within itself both the proposition and the application of it to particular circumstances. For the purpose of making the nature of the work clearer, we extract the following example, not on account of its special or inherent importance, but in order that the form and arrangement of this 'Digest' may be clearly understood:
'The jurisdiction of every independent nation over the merchant vessels of other nations lying within its own harbours is absolute and exclusive. Nothing but its authority can justify a ship of war belonging to another nation in seizing or detaining a vessel thus situated for any cause or pretext whatever. . . . There is no power on earth which would assert this principle with more determination and energy than the United States, and therefore there is no power which ought more carefully to avoid any violation of it in their conduct towards other nations.'-Mr. Buchanan, Secretary of State, to Mr. Wise, Sept. 27, 1845, MSS. Inst. Brazil. (Digest, vol. i. p. 117.)
The next proposition exemplifies the second description we have given above, since it is a despatch in 1873 from Mr. Fish to Mr. Schenck relative to an assumption of jurisdiction by the common law courts in this country over disputes between masters and crews of American vessels. The despatch is too lengthy to be given in full, but the statements in it contain the view of the United States on this point of law, and the application of it by the Secretary of State to the particular case to which his attention had been called. It would not, in our opinion, have been possible to improve on the form of this work or to make better use, within a reasonable space, of the materials to which Dr. Wharton has had access. Possibly greater facility of reference would exist had marginal notes been employed by the editor in certain parts, as for instance in regard to the treaties. This is, after all, a minor criticism, but it is not without value in view of the publication in this country of a similar work at some future time. There is no reason, so far as we are aware, why such a book should not be compiled here; it would be of the greatest use to politicians and publicists, without taking into account the requirements of teachers and students of international law. The nearest approach to any work of this kind in this. country is Mr. Forsyth's collection of cases and opinions
on constitutional law, which in some instances touch on questions of international law. But at present we are wholly without such a work as that before us, and the student of international law in this country has only the ponderous and comprehensive work of Sir Robert Phillimore, or the more concise and elementary work of Mr. Hall, together with other works of a similar character, or monographs on some special subject. A work which shall contain at once an authoritative exposition of international law and documentary extracts from State papers has in this country yet to be written.
Dr. Wharton's Digest' enables us to follow with ease the remarkable conflict of opinion on the Clayton-Bulwer treaty which has existed for many years, and which began with the negotiations between Great Britain and the United States relating to the canal which in 1849 it was proposed to construct from the Atlantic to the Pacific by way of the river San Juan de Nicaragua and either or both of the lakes of Nicaragua and Managua. These differences the ClaytonBulwer treaty was to end. On the contrary, it has formed a battle-ground for diplomatists since it came into existence in 1850, and has exercised the ingenuity of publicists from the date of its promulgation to the present time.
When the Clayton-Bulwer treaty was concluded, no doubt the only canal then in contemplation was that through Nicaragua; on the other hand, there was already in existence a scheme for a railway across the isthmus. But it is obvious that a railway from ocean to ocean cannot have the same international importance as a canal capable of being used by seagoing vessels. We may leave out of consideration the questions which have arisen under the treaty as to the British protectorate of the Mosquito Indians, and the Bay Islands and the British settlements in Belize or British Honduras. These are now settled and done with, and they have not the permanent interest and importance which attach to the question of the control of an interoceanic canal. As we have already pointed out, it has been a permanent guiding principle with American politicians, as enunciated by President Monroe, that no European state has a right to interfere in the affairs of Central America. We may observe in passing that the principle of the doctrine, sc far as Great Britain is concerned, is scarcely applicable. For she is in one sense an American power, and is vitally interested in the affairs of the American continent. It is of as much importance to her as to the United States, that if an interoceanic canal be constructed, she should have free