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The Influence of the Law of Nature Upon International Law in the United States1

Published online by Cambridge University Press:  04 May 2017

Jesse S. Reeves
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Extract

The political philosophers of the eighteenth century might have been surprised if told that their favorite doctrine of natural rights was the intellectual successor of certain theories of the Roman law and of the scholasticism of Saint Thomas Aquinas. Yet the “ state of nature,” which filled so large a place in the discussion of natural rights, has been called “ an exaggerated perversion of what, in traditional system, was quite a subordinant point” From Locke to Hooker, and back through the scholastic philosophy, the germ of natural rights has been traced to the jus naturœ and the jus gentium of the Roman law. Grotius and his successors preserved the tradition in another and more direct line. The continuity of Grotius with the doctrine of the Roman law was complete. “ The law of nature,” said Holland, “ is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentilis and Grotius. The change in the meaning of jus gentium made by Grotius and his successors, and the influence which the jus naturœ had in forming the new conception of the law of nations can only be referred to here.

Type
Research Article
Information
American Journal of International Law , Volume 3 , Issue 3 , July 1909 , pp. 547 - 561
Copyright
Copyright © American Society of International Law 1909

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Footnotes

1

A paper read at the meeting of the American Political Science Association, held at Richmond, Virginia, December 31, 1908.

References

2 Sir Frederick Pollock, Note G to his edition of Maine’s Ancient Law. Carlyle, Medieval Political Theory in the West, I, Chap. 9.

3 Pollock’s Maine’s Ancient Law, Note H.

4 Jurisprudence, 10th Ed., 38.

5 “Mr. Bryce’s recent essay on the Law of Nature should be read by all students of legal history,” says Sir Frederick Pollock, in his note (page 387). To it may be added the latter’s article upon the same subject in the Journal of Comparative Legislation, 1900.

6 West Rand * * * Co. v. King, L. R. 1905, 2 K. B. 391; see this Journal, 1:217.

7 The Nereide, 9 Cranch, 388.

8 Professor Woolsey in Two Centuries’ Growth of American Law, 494.

9 Westlake, Chapters on the Principles of International Law, 65.

10 Ibid., 38.

11 The Writings of Colonel Wm. Byrd, page 417.

12 “The Farmer Refuted,” Hamilton’s Hamilton, II, 42.

13 Judge S. E. Baldwin in his American Judiciary, pp. 348 sqq., gives other facts relating to early American legal education, as does Professor James F. Colby in his article “ The Collegiate Study of Law,” Report of American Bar Ass’n, 1896.

14 Wharton’s Diplomatic Correspondence of the American Revolution, II, 64.

15 Works, I, 174.

16 Ibid., I, 98.

17 Cf. Holland, Jurisprudence, 10th ed., 10.

18 Glover v. The Brig William, 7 Dane’s Abr., chap. 227, sec. 12.

19 Article by J. C. Bancroft Davis, appendix to 131 U. S., xxxiv.

20 In connection with the Longchamps case, it may be remarked that Pennsylvania went farther during the Confederation than any other state in giving consideration to foreign relations. Both the Supreme Executive Council and the Assembly paid much attention to the Longchamps case, and the former held several conferences with the French minister upon the subject. See the Minutes of the Supreme Executive Council of Pennsylvania, volume 14, pp. 115, 117, 121, 593. In 1782 the General Assembly passed an act “to secure the rights of Frenchmen according to the Treaty of 1778.” Pennsylvania Statutes at Large, X. 509.

21 Journals of Congress, V, 86-90.

22 Wheaton’s History of the Law of Nations, 298, n.

23 Vattel, Book III, sec. 113.

24 Jefferson to Gouverneur Morris, Aug. 16, 1793, Am. State Papers, For. Rel. I, 168.

25 Cf. Lorimer, II, 52.

26 Hall’s International Law, 4th ed., 615.

27 John Adams’s Journal, November 25, 1782; Wharton’s Diplomatic Correspondence of the American Revolution, VI, 72.

28 “Poor as we are, yet as I know we shall be rich. I would rather agree with [Spain] to buy at a great price the whole of their right than sell a drop of its waters. A neighbor might as well ask me to sell my street door.” Franklin to Jay, October 2, 1780. Ibid., IV, 75.

29 Ibid., VI, 31.