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Edmund Burke and the Law of Nations

Published online by Cambridge University Press:  20 April 2017

Peter J. Stanlis
Peter J. Stanlis*
Affiliation:
University of Detroit
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Extract

It is generally agreed that the modern origins of the law of nations are to be found in two great early seventeenth-century works, Suarez’ Tractatus de legibus ac deo legislatore (1612) and Grotius' De jure belli et pacis (1625). Among their contemporaries, Suarez and Grotius were moderate and mediating men, and they were therefore particularly aware that the basic problems of international diplomacy—the just causes and conduct of war, treatment of prisoners, acquisition of sovereignty and booty through conquest, neutrality or intervention, maritime law, treaties, etc., had become profoundly complicated by the growth of a conscious and extreme political nationalism.

Type
Research Article
Information
American Journal of International Law , Volume 47 , Issue 3 , July 1953 , pp. 397 - 413
Copyright
Copyright © American Society of International Law 1953

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References

1 Hobbes, with his theory that nations are related to each other as individuals in his hypothetical “state of nature,” was the one great exception to this assumption. Although Hobbes used the language of “Natural Law,” his theory of international law is purely contractual, expedient, secular and utilitarian. By contending that international law derived primarily from national civil laws and self-interest, Pufendorf arrived through different means at a theory almost identical with that of Hobbes.

2 “Apparently following Suarez, Grotius derives the law of international relations primarily from the law of nature, and secondarily from the jus gentium by which the law of nature is supplemented.” Arthur Nussbaum, A Concise History of the Law of Nations (New York, 1947), p. 104.

3 For the dual use of “law of nations” in the works of Suarez and Grotius, see Nussbaum, op. cit., pp. 64–72, 92–112. The international conception was generally stressed.

4 Blackstone, Commentaries (Chitty ed., New York, 1832), Vol. I, p. 29.

5 Henry St. John Bolingbroke, “The Idea of a Patriot King,” Works (Philadelphia, 1841), Vol. II, p. 379. The last sentence indicates how Bolingbroke, as a patriot, Deist and logician, could appeal to the natural law yet invert the whole moral basis of political sovereignty. Bolingbroke made not merely constitutional law, but civil conventions, statutory laws and even the arbitrary decrees of his “patriot king” the ultimate basis of just rule. Like Burke he used the vocabulary of natural law, but he arrived at a Hobbist theory of sovereignty, of will over law, which completely contradicted Burke. For the vital differences in their conceptions of natural law, see Eldon M. Talley, The Concept of Natural Law in the Thought of Bolingbroke and Burke (M.A. thesis, Fordham University, 1948).

6 Even statutory laws were derived from natural law: “All civil laws … either presuppose or include the chief heads of the Law of Nature … neither are these in the least injured or impaired by the particular ordinances, which each commonwealth finds a necessity of superadding, for its separate interest and benefit.” Pufendorf, Of the Laws of Nature and Nations (Oxford, 1703), p. 106.

7 For proof that Burke was an exponent of natural law in politics, see this writer’s Ph.D. thesis, Burke’s Politics and the Law of Nature (University of Michigan, 1951). Professor Ross Hoffman of Fordham University was the first modern scholar to point out and emphasize the paramount position of natural law in Burke’s political thought.

8 See Speeches, Vol. III, pp. 217–218; Vol. IV, p. 476. All references to Burke’s speeches are from the London, 1816, four-volume edition.

9 Speeches, Vol. IV, p. 480.

10 Regicide Peace, p. 214. All quotations of individual works are from the Bohn edition of Burke’s Works (London, 1854, 6 vols.).

* To verify Burke’s point, see, for example, Pufendorf, op. cit., p. 106.

11 Regicide Peace, p. 214. The idea of the “Commonwealth of Europe” occurs frequently in this work. See pp. 203, 206, 215, 219, 233, 244, 253–254, 323–324, 364, 373 and 433.

12 Mackintosh, A Discourse on the Law of Nature and Nations (London, 1799), p. 21. See also pp. 4, 17 and 35.

13 See William Hazlitt, The Spirit of the Age, p. 100; Laurence Correspondence, pp. 106–107.

14 A Letter to the Sheriffs of Bristol, p. 6.

15 Speeches, Vol. I, p. 398. Burke insisted that the Indians’ method of warfare was utterly lawless and uncivilized, and that Britain was bound by the rules of war which governed all civilized nations.

16 Ibid., p. 414.

17 Speeches, Vol. II, p. 248. For Burke’s second account of the St. Eustatius affair, see Annual Register (1781), pp. 101–106. The universal conflscation of private property, wrote Burke, “drew upon us … the odium of all Europe.” (p. 105.) William Lecky said that the events and treachery that followed the capture of St. Eustatius “ought to bring a blush to the cheek of every English historian.” For his account, see A History of England in the Eighteenth Century, Vol. IV, pp. 179–182.

18 Ibid., pp. 249–255.

19 Ibid., pp. 256–258. See also pp. 259–269, 313–328. Written authorities were for Burke the least binding evidence of the law of nations: “As to the authority of books, he thought them the weakest part of the argument, although they had collected the wisdom of ages, and had connected it with their authors’ sagacity, judgment and sense. He quoted Vattel as being the latest and best, and whose testimony he preferred; because being a modern writer, he expressed the sense of the day in which we live.” Ibid., p. 259. Although Burke quoted Vattel more than any other writer on international law, actually his conception of the law of nations is far more consciously connected with natural law. Twenty-three years before Burke condemned Britain’s behavior at St. Eustatius, he had attacked Frederick of Prussia for pillaging the private property of the conquered Saxons: “When a country is entirely possessed by any power, and claimed as a conquest, the rights of war seem to cease, and the people have a claim to be governed in such a manner as becomes a just prince.” Annual Register (1758), p. 64.

20 Ibid., p. 260. Later Burke noted that the Marquis de Bouillé, in seizing British possessions, “treated the conquered with tenderness and humanity.” Ibid., p. 326.

21 Ibid., p. 259. For Burke’s other appeals to the law of nations in colonial affairs, particularly in the exchange of prisoners after Cornwallis surrendered, see Speeches, Vol. I, pp. 131–132; Vol. II, pp. 295–311.

22 Speeches, Vol. IV, p. 6. See also p. 5.

23 Ibid., p. 85.

24 Ibid., p. 95. See also p. 109.

25 Ibid., p. 93. See also p. 100. Lord Aeton, a staunch defender of the French Revolution, conceded in effect that in this vital point Burke was right: “The French Revolution … involved international consequences. It condemned the governments of other countries. If the revolutionary government was legitimate, the conservative governments were not. They necessarily threatened each other. By the law of its existence, France encouraged insurrection against its neighbors. … The Convention which … promised brotherhood to populations striking for freedom, was impolitic, but was not illogical. … Nobody imagined that the new system of international relations could be carried into effect without resistance or sacrifice, but the enthusiasts of liberty, true or false, might well account it worth all that it must cost, even if the price was to be twenty years of war. This new dogma is the real cause of the breach with England, which did such harm to France.” Lectures on the French Eevolution (London, 1910), pp. 317–318.

26 Ibid., pp. 107–108. See also p. 109.

27 Ibid., p. 140.

28 Lord Acton suggests how Marat’s belief in the Hobbist “state of nature,” interpreted optimistically, supplied in part the theoretical basis of the Reign of Terror: “Marat was obedient to a logic of his own. He adopted simply the state of nature and the primitive contract, in which thousands of his contemporaries believed. The poor had agreed to renounce the rights of savage life and the prerogative of force, in return for the benefits of civilization; but finding the compact broken on the other side, finding that the upper classes governed in their own interest, and left them to misery and ignorance, they resumed the conditions of barbaric existence before society, and were free to take what they required, and to inflict what punishment they chose upon men who had made a profit of their suffering.” Op. cit., pp. 226–227. Identifying his “state of nature” with the “law of nature,” Marat wrote his own draft of the “Rights of Man,” in which he avowed, said Acton, “that, by the law of nature, a man may do what he likes in the pursuit of happiness, and, to elude oppression, may oppress, imprison, and destroy.” Op. cit., p. 113. See also pp. 241–242. Burke knew that anarchy in international affairs had begun in the early 1770’s, with the violations of Corsica and Poland, which he had condemned: “The breach that has been now made, in those compacts that unite states for their mutual benefit, establishes a most dangerous precedent; it deprives, in a great measure, every separate power in Europe, of that security which was founded in treaties, alliances, common interest, and public faith. It seems to throw nations collectively into that state of nature, in which it has been supposed that mankind separately at one time subsisted, when the security of the individual depended singly upon his own strength.” Annual Register (1772), Preface.

29 Ibid., p. 120.

30 Ibid., pp. 150–151.

31 Ibid., p. 154.

32 Correspondence, Vol. III, p. 226. See also pp. 508–509. The same doctrine had been advanced by Burke to justify France’s interest in the American cause, and in December, 1787, during the Dutch Patriot-Court conflict, Burke had said that the defeat of the French party in Holland was within Britain’s legitimate self-interest. See Speeches, Vol. III, p. 310.

33 Speeches, Vol. IV, p. 151. As early as 1772–1774, Burke had attacked the theory of non-interference when, out of jealousy for France, Britain had refused to help her prevent the partition of Poland. He had castigated Britain for placing a narrow national self-interest above social justice, and had warned that non-interference was a novel innovation which might some day destroy the balance of power in Europe. See Annual Register (1772), pp. 1–45; Parliamentary History (May 18, 1774), Vol. XVII, p. 1341. In 1791 even Mackintosh had admitted that all Englishmen, friends and enemies of the Revolution, agreed its influence could not be restricted to France, but would alter the whole social state of Europe. (Vindiciae Gallicae, p. 358.) Lecky agreed with Burke: “It was idle to say that French affairs did not concern Englishmen, when they were steadily and persistently held up as a model.” Op. cit., Vol. V, p. 487. See also pp. 519–521.

34 Ibid., p. 153.

35 Regicide Peace, p. 153. See also pp. 213, 220; Reflections, pp. 307–308.

36 Regicide Peace, p. 178. See also pp. 182, 185–186.

37 Ibid., pp. 206, 233–234. For Burke’s other appeals to the law of nations in French affairs, see Thoughts on French Affairs, pp. 348–349; The Policy of the Allies, p. 431, particularly Burke’s Extracts from Vattel’s Law of Nations,” Appendix, pp. 458–466. Acton’s comment on the impending émigré invasion is worth noting here: “Already Burke had written: ‘If ever a foreign prince enters into France, he must enter it as into a country of assassins. The mode of civilized war will not be practiced; nor are the French, who act on the present system, entitled to expect it.’ ” Op. cit., p. 213. Acton interprets Burke’s words not as an indicative fact concerning Jacobin theory of war, but as an imperative command on how the war against France should be conducted.

38 Ibid., p. 216.

39 Annual Register (1767), p. 295. See also p. 298.

40 Regicide Peaee, p. 425.

41 Reflections, p. 307. See also p. 306.

42 See A Letter to the Sheriffs of Bristol, p. 10.

43 Reflections, p. 305.

44 Ibid., p. 423. Burke’s speeches in Parliament are filled with statements that statutes should conform to the spirit of “Magna Charta, the common law of the land, and the constitution.” Speeches, Vol. III, p. 182.

45 Ibid., p. 310.

46 An Appeal from the New to the Old Whigs, p. 109.

47 Correspondence, Vol. IV, Appendix, p. 465.

48 Reflections, p. 307.

49 Ibid., pp. 308–309.

50 Ibid., p. 455.

51 Ibid., p. 467.

52 Ibid., p. 320. See also p. 467. MacCunn has a fairly good account of “civil vicinity” in The Political Philosophy of Burke, pp. 16–37.

53 Correspondence, Vol. IV, p. 186.

54 Windham, Diary, p. 371.

55 Reflections, p. 325. See also p. 284.

56 A Letter to a Member of the National Assembly, p. 548. See also Thoughts on French Affairs, p. 392.

57 A Letter to a Member of the National Assembly, p. 549.

58 Ibid.