Abbildungen der Seite

necessary a 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 mountable subdivisions of employ. in 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 author 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 continucd 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 « Literatiire 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 awhich 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 fore of and familiarized in his mind by cduantiquity. 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 due portion of repeated revision from the inevitathat 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, vergate diurna, not generally known, and consider, and at a proper season given to the ably contested; whose work appear: 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 recesses 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 remote, not improperly be entitled) to Byn, ness, have been saved from destruc. kershoek'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 dis 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 na. molument and pride, are incessantly tions, with candour, learning, and striving to learn and to teach, to dispassionateness, without some pals įmprove, extend, and render per, try prejudice or absurd antipathy, manent, that law; among whom Mr. that we are ready to hail such a wri. Duponceau is distinguished for hạ. ter, as we would a powerful pacifi. ving made this subject his peculiarcator 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 dedicated to it; of authority commands peace and for his uncommonly extensive and eason. accurate knowledge of those various In reviewing sach a work, it languages, and consequently for his would be presumptuous to assume the functions of domineering criti. our readers the original and both cism. In this era of universal reste translations. Bellum est eorum, qui lessness, revolution, and usurpation, suæ potestatis sunt, juris sui persecriticks, like other usurpers, have quendi ergo, concertatis per vim vel enthroned themselves on the high doium.* 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 respective. mostly 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 our own dogmas and ingenuous copy has not the bare me. prepossessions; but sincerely desi. rit of being correct; but is, in seye. rous of rendering ourselves strictly ral respects, untrue and absurd. Eoancillary to their purposes, to be rum qui suæ potestatis sunt, is transtheir “ honest chronicler,” and with lated into independent sovereigne; 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 « sive 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 “there. questions of international law. fore;” thus turning a definition,

which of course should not argue, CHAPTER 1.

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 inde. cular of no great interest to most pendent persons, by force, or fraud, teaders; 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 a 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 combi, the clear style and correct version ned, is an incidental definition by Salof Mr. Duponceau, with the awk. lust; who calls peace “otium 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, undoubt, we beg leave to set before tamed conflict, which seems to be

[ocr errors][ocr errors]

more than ever natural to man, both ration abroad, as many wars of late civilized and savage; which, as this have stolen out in undeclared, unac. expression intimates, is the grand knowledged trespasses, and some in business of life; for which all clandestine wrongs, perpetrated with previous peace is but a period of one hand and denied with the other; preparation, and all subsequent re- it will be as well not to embarrass pose but a breathing spell and inac- the practical usages of states, with tion; to the carrying on of which a contests about these subsidiary in. vast majority of civilized men are cidents; but leaving them for the regularly educated; and concerning introductory chapters of civilians, to which statesmen and publicists have receive the declarations of war, as, composed their finest dissertations. in spite of our reasoning, they goThe great powers of refined Europe nerally will come, from the ada. seem to be so bent on the perfection mantine throats of thundering artil. of this state of nature, that all their lery. efforts are exerted to

Without, therefore, any time spent

“ Rend and deracinate upon this head, we proceed to a The unity and married calm of states;" thers; merely taking occasion, in who seem to have decreed a divorce transitu, to point out a capital mis à mensa, thoro et vinculis, and to take of Mr. "Bynkershoek’s printer have executed articles of perpetual in this chapter, which is unsuspect. strife and separation.'

ingly adopted and propagated by

Mr. Lee; and now, for the first time, CHAPTER II.

rectified by Mr. Duponceau. In this Whether civilized nations are second chapter Bynkershoek quotes bound to declare war, is another of a passage from Dion Chrysostom, the questions involved in the gene where he says that wars are more fre. neral doctrine of the law of nations, quently waged without previous dewhich, however proper to be dis- clarations; and in the following page, cussed in this chapter, and some evidently by a misprint, quotes the times handled by statesmen, is not same passage in an opposite sense. much to the purpose of our main But Lee, perceiving the dilemma, and inquiry. Perhaps Bynkershoek leaves at a loss how to escape it, like an it on its best footing, viz. that they experienced antiquarian, calls in the ought, but are not bound, to pro- Greeks and Romans to his aid, mulgate a solemn annunciation. If, though Bynkershoek in this passage like Idæus and Talthybius, the sa- makes no mention of them whatever; cred heralds in the Iliad, or the fe- and asserts that they, as he undercial messengers of the Romans, mo- stands from Chrysostom aforesaid, dern ambassadours could not only de waged war for the most part by declare, but suspend and terminate claration-Lee, p. 91. Duponceau, wars, this point would become in. venturing to leave the Greeks and teresting to us all. But as the pro- Romans to themselves, and yet declamations and manifestos, which sirous of explaining the seeming generally precede or attend modern contradiction, inserts a note in which hostilities, are intended to give po: the whole difficulty is satisfactorily pularity at home, not note of prepa. cleared up.*

• In the original, this passage from Dion Chrysostom is quoted so as to mean, that war is most frequently DECLARED (bella indicta ini tò matisov, ut plurimùm) but from the context it appears evidently to have been an errour of the press. The words of Chrysostom are: rótues chini To antisor 'AKHPTK TOI pigrortas. Wars are most frequenthe made wITHOUT a publick declaration, and so our author translates them very correctly above, page 7.

CHAPTER III.-IV. or's use, passes on, almost without · The period when Bynkershoek noticing this principle, to the sube wrote may seem to be too mo. ordinate inquiry that follows. der for supporting the right to de- A quarrel between Louvois and stroy or enslave prisoners of war. Le Notre, respecting one of the winYet when we reflect on what are dows in the palace of Versailles. termed the rights of war, however which Louis the fourteenth found it shocking the principle may appear, necessary to quell, by reproving the must it not be conceded as one of former, instigated that mortified the incidents of that summum jus, great minister of war to plunge his which, as the translator properly master into the endless hostilities observes, is very near akin to that followed, by way of amusing barbarism ? The custom of ex. his mind and securing his own place. changing prisoners has so gene. And no one contested the right to rarally superseded those of enslaving vage and lay waste the Palatinate, and destroying them, and so many however the unnecessary cruelty of offices of civility and reciprocal that ferocious stroke of Louvois' poli. kindness have been engrafted on cy may be deprecated or detested. the duties, so called, of war, that Henry the fifth, of England, during we have brought ourselves almost to the battle of Agincourt, did not hebelieve, that an enemy has no right sitate to put all his prisoners to over prisoners beyond that of deten- death, on the plea of necessity; nor tion; an opinion undoubtedly un, do we doubt his right, though we founded, or the blood of André shudder at the deed. would rest on the head of Washing. Let us not be understood to re. ton, and all the examples of reta. commend the poisoning of fountains, llating severity, which every war or massacre of captives. But we do visits on the conflicting parties, venture an opinion, in conformity would be nothing better than so ma with the text before us, that nations, ny murders. Is not this seeming before they rush upon a state of war, amelioracion calculated to perpetu. should be prepared to endure its ate bloodshed, by rendering war a essential hardships. And we do wish science, full to be sure of peril and to be understood as reprobating stratagem, but nevertheless contain: those corrupt relaxations which have ed within certain ascertained bounds obtained lately between the great of wrong-doing, a captivating pro. European belligerents, by which the fession to the young and ambitious, rigours of war are frittered away as and the surest means of a bad minis. between themselves, and their whole ter's support? Would it not con- edge and operation turned upon tribute more to the infrequency, and, neutrals. We are not anxious, at at least comparative, prevention of this time of day, to contest, ab ovo, wars, if their rights were exercised the rights, of war; or tu assert that with less mitigated rigour; and war. neutrals acquire immunities not ring nations made to feel, in their theirs in time of peace. But we must direst effects, the pressure and prin reprobate all corruptions, which tend vations of that state of barbarism, of to make a quasi peace between the Savage nature, brute force, and belligerents, and a quasi war besuspended civilisation, which, after tween them and neutrals; in which, all that can be said, done, or write like a quarrelling man and wife, the ten, war is and ever will be ? belligerents coalesce to destroy the

As regards property there is no neutrel who interferes with his imdispute. Therefore, in the fourth partial assistance. It will be perchapter, the author, taking it for ceived that, in advance of its progranted that all things by con- per place, we are alluding to what is quest are converted to the conquer called the license trade, that has

« ZurückWeiter »