Thursday, December 11, 2008

Law of Nations; or Principles of the Law of Nature: Applies to the Conduct & Affairs of Nations & Sovereigns 1759

Law of Nations; or Principles of the Law of Nature:
Applies to the Conduct & Affairs of Nations & Sovereigns
1759. 1st. English Edition.
Emmerich de Vattel

Emmerich de Vattel's The Law of Nations was key in framing the United States as the world's first constitutional republic.

The myth that the founding of American Republic was based on the philosophy of John Locke could only have been maintained, because the history of Leibniz's influence was suppressed. The American Revolution was, in fact, a battle against the philosophy of Locke and the English utilitarians. Key to this struggle, was the work of the Eighteenth-century jurist, Emmerich de Vattel, whose widely read text, The Law of Nations, guided the framing of the United States as the world's first constitutional republic. Vattel had challenged the most basic axioms of the Venetian party, which had taken over England before the time of the American Revolution, and it was from Vattel's The Law of Nations, more than anywhere else, that America's founders learned the Leibnizian natural law, which became the basis for the American System.

Virtually unknown today except amongst specialists, Emmerich de Vattel was born on April 25, 1714, in the principality of Neufchâtel, which was part of Switzerland. He became an ardent student of Leibniz, and in 1741, published his first work, a defense of Leibniz, Défense du système leibnitzien.

His most famous work, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns:

Vattel's The Law of Nations, was the most influential book on the law of nations for 125 years following its publication. The first English translation appeared in 1759. Numerous editions of The Law of Nations were printed in England during the Eighteenth century, which were widely read in the American Colonies, along with editions in the original French. The first American edition appeared in 1796.

Vattel was the most popular of all writers on the law of nations in America before, but especially after, the American Revolution. Vattel's The Law of Nations arrived, shortly after its publication, in an America. No later than 1770, it was used as a textbook in colleges. It was often quoted in speeches before judicial tribunals and legislatures, and used in formulating policy. Following the Revolution, Vattel's influence grew.

Among those citing Vattel in legal cases and government documents, were Benjamin Franklin, John Adams, James Wilson, Alexander Hamilton, James Madison, John Jay, and John Marshall. John Adams, the future delegate to the Continental Congress, second President of the U.S., and father of President John Quincy Adams, recorded in his Diary on Feb. 1, 1763, that after spending the day frivolously, instead of reading and thinking, "The Idea of M. de Vattel indeed, scowling and frowning, haunted me. In 1765, Adams copied into his Diary three statements by Vattel, "of great use to Judges," that laws should be interpreted according to the intent of the author, and every interpretation which leads to absurdity should be rejected. In a letter to the Foreign Minister of Denmark, in 1779, Benjamin Franklin quoted Vattel, and "his excellent Treatise entitled Le Droit des Gens." James Madison, as a member of the Continental Congress in 1780, drafted the instructions sent to John Jay, for negotiating a treaty with Spain, which quotes at length from The Law of Nations. Jay complained that this letter, which was probably read by the Spanish government, was not in code, and "Vattel's Law of Nations, which I found quoted in a letter from Congress, is prohibited here." Later, John Marshall, during his thirty-four years as Chief Justice of the U.S. Supreme Court, quoted Vattel by far the most among all authors on the law of nations.

The Law of Nations and The Declaration of Independence

Delegates to the First and Second Continental Congress, which produced the Declaration of Independence, often consulted The Law of Nations, as a reference for their discussions. One important reason why the delegates chose to meet in Carpenters Hall, was that the building also housed the Library Company of Philadelphia. The librarian reported that Vattel was one of the main sources consulted by the delegates during the First Continental Congress, which met from Sept. 5 to Oct. 26, 1774. Charles W.F. Dumas, an ardent supporter of the American cause, printed an edition of The Law of Nations in 1774, with his own notes illustrating how the book applied to the American situation. In 1770, Dumas had met Franklin in Holland, and was one of Franklin's key collaborators in his European diplomacy. He sent three copies to Franklin, instructing him to send one to Harvard University, and to put one in the Philadelphia library. Franklin sent Dumas a letter, Dec. 9, 1775, thanking him for the gift. Franklin stated, "I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, has been continually in the hands of the members of our congress, now sitting ... ."

The study of The Law of Nations by the delegates to the Continental Congress, to answer questions "of the circumstances of a rising state," is reflected in the Declaration of Independence of July 4, 1776. The central ideas of that document are coherent with Vattel's arguments on the criteria of a people to overthrow a tyrannical sovereign. The Declaration of Independence states that governments are instituted to fulfill the "inalienable rights" of "life, liberty, and the pursuit of happiness," and can be changed if they fail to meet these obligations to the people.

Governments should not be changed for light and transient causes, but only after a long chain of abuses to the fundamental rights of the people, with repeated requests for redress of grievances, which were refused. Repeated appeals were made to our "British Brethren," but since they "have been deaf to the voice of justice and of consanguinity," we are prepared to face them either in war or in peace. Therefore, we declare ourselves independent of the British Crown, with the full powers of a sovereign government, "to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do."

The inclusion of the central conception of The Law of Nations, Vattel's Leibnizian concept of happiness, as one of the three inalienable rights, is a crucial statement of the Declaration's Leibnizian character. The Declaration of Independence was prepared by a committee consisting of Benjamin Franklin, Thomas Jefferson, John Adams, Robert Livingston, and Roger Sherman. Jefferson was assigned by this committee to write the draft of the Declaration, after John Adams turned down the task, because of his numerous other responsibilities. The fact, that Jefferson was a strong proponent of the philosophy of John Locke by as early as 1771, is often used as evidence that the Declaration was based on Locke's philosophy. However, Locke had argued, in his Two Treatises of Government, that the fundamental right of men is to "Life, Liberty, and Property." The inclusion of "the pursuit of happiness," rather than "property," as an inalienable right, was a crucial statement, that the American Revolution would be a battle for the establishment of a true Republic, rather than merely a dispute between two groups of aristocrats over the division of property.

The Law of Nations and The Constitution

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."—Preamble of The Constitution of the United States
The Law of Nations was crucial in shaping American thinking about the nature of constitutions.

To this day, Great Britain does not have a written constitution, but instead a collection of laws, customs, and institutions, which can be changed by the Parliament.

The only place of appeal which the American colonists had for unjust laws was to the King's Privy Council. Attempts by the colonists to argue that actions by the British Monarchy and Parliament were unlawful or unconstitutional would be stymied, if they stayed within this legal framework which was essentially arbitrary. Although Vattel praised the British constitution for providing a degree of freedom and lawfulness not seen in most of the German states, his principles of constitutional law were entirely different from the British constitutional arrangements. Consequently, the American colonists attacked the foundation of the King and Parliament's power, by demanding that Vattel's principles of constitutional law be the basis for interpreting the British constitution.

American writers quoted The Law of Nations on constitutional law, almost immediately after the book's publication. In 1764, James Otis of Massachusetts argued, in one of the leading pamphlets of the day, "The Rights of the British Colonies Asserted and Proved," that the colonial charters were constitutional arrangements. He then quoted Vattel, that the right to establish a constitution lies with the nation as a whole, and the Parliament lacked the right to change the fundamental principles of the British Constitution. Boston revolutionary leader Samuel Adams wrote in 1772, "Vattel tells us plainly and without hesitation, that 'the supreme legislative cannot change the constitution,' 'that their authority does not extend so far,' and 'that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them.' " In a debate with the Colonial Governor of Massachusetts, in 1773, John Adams quoted Vattel that the parliament does not have the power to change the constitution.

The adoption of a constitution, by the Constitutional Congress in 1787, based on Leibnizian principles rather than British legal doctrine, was certainly not inevitable. However, British legal experts such as Blackstone, who argued that the Parliament and King could change the constitution, were increasingly recognized by the Americans as proponents of arbitrary power. The early revolutionary leaders' emphasis on Vattel as the authority on constitutional law, with his conception that a nation must choose the best constitution to ensure its perfection and happiness, had very fortunate consequences for the United States and the world, when the U.S. Constitution was later written.

The U.S. Consititution

One of the first and most persistent in efforts to replace the weak central government with a strong one, was Alexander Hamilton. The government of the Articles of Confederation demonstrated its inadequacies during the American Revolution, and its failings became even clearer, when it was unable to halt the economic collapse which resulted from British economic warfare, following the 1783 Treaty of Paris. On Sept. 3, 1780, Hamilton, who was aide-de-camp for Washington, sent a letter to James Duane, who was then a Congressman, arguing that the weak central government was a disaster and urging specific reforms to strengthen it. For the next seven years, Hamilton argued in private letters, public appeals, resolutions, speeches in assemblies, and maneuvers at conventions, that a new constitution was needed to provide a strong central government.

Hamilton was a delegate to the convention which wrote the Constitution in 1787. His main concern was not the institutional arrangements of the government, but its purpose, and the creation of a central government strong enough to carry out that purpose. Three weeks into the convention, he delivered an all-day speech focussing on this. Whereas many of the delegates to the convention saw the purpose of government from the Lockean standpoint of "life, liberty and property," Hamilton's speech, coherent with Vattel's "Principle Objects of a Good Government," located the purposes of government as "the great purposes of commerce, revenue, or agriculture," "tranquility and happiness at home," and, "sufficient stability and strength to make us respectable abroad."

The concept of judicial review, which Hamilton had championed in Rutgers v. Waddington, was included in the U.S. Constitution. In The Federalist Papers, No. 78, "The Judges as Guardians of the Constitution," circulated as part of the debate over the new Constitution, Hamilton developed a conception of constitutional law which was coherent with Vattel's conception. Hamilton stated that it is a "fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness." However, the Constitution can only be changed by the nation as a whole, and not by the temporary passions of the majority or by the legislature. Both to protect the Constitution, but also to ensure just enforcement of the law, the independence of the judiciary from the legislature and the executive branch is essential. The judiciary must be the guardians of the Constitution, to ensure that all legislative decisions are coherent with it. This idea championed by Hamilton, that the courts ensured that the Executive and Legislative branches followed the Constitution, was later established as a principle of American jurisprudence by Chief Justice John Marshall.


The Law of Nations or the Principles of Natural Law 1758, Emmerich de Vattel - LONANG Library

Diary and Autobiography of John Adams, L.H. Butterfield - Cambridge, Mass: The Belknap Press, 1961, Vol. 1, p. 235.

Butterfield, Vol. 1, p. 278.

The Papers of Benjamin Franklin, by William B. Willcox - New Haven: Yale University Press, 1959, Vol. 31, pp. 261-65.

John Jay, Letter to Gouverneur Morris, in John Jay: Winning the Peace, 1745-84, by Richard B. Morris - New York: Harper and Row, 1980, Vol II, pp. 108-10.

Benjamin Munn Ziegler, The International Law of John Marshall, Chapel Hill, N.C.: University of North Carolina Press, 1939, p. 9.

Letter from William Bradford to James Madison, Oct. 17, 1774, The Papers of James Madison, by William Hutchinson and William Rachal - Chicago: University of Chicago Press, 1962, Vol. I, p. 126.

Charles William Frederick Dumas was a native of Switzerland, who lived most of his life in The Netherlands. He was one of the most important agents and diplomats working for the American cause in Europe. Dumas corresponded constantly with Franklin, using his edition of The Law of Nations as a cipher for coding his communications. Franklin had to use his copy of The Law of Nations to decipher Dumas' letters.

Thomas Jefferson, Letter to Robert Skipwith, Aug. 3, 1771, in Writings, op. cit., pp. 740-45.

Alexander Hamilton, Letter to James Duane, in The Papers of Alexander Hamilton, ed. by Harold C. Syrett - New York: Columbia University Press, 1961-77, Vol 2, pp. 400-18.

Forrest McDonald, Alexander Hamilton, A Biography - New York: W.W. Norton & Company, 1979, p. 97.