The legal merits of Mr. Dana's annotations require other and higher tests. They depend upon the accuracy of his statements and reasoning, and the amount of assistance which those will obtain who seek it from him. To investigate this would require more space than we can now give, and rather falls within the province of a professional reviewer. A strong conviction of the soundness of his logic, however, involuntarily follows a careful perusal of these notes, and will have no little influence with those who feel it. This is partly owing to the passionless tone of his discussion, of which we have before spoken. The amount of historical and general political information which this book contains will give it value aside from its legal character, and demands for it a very general circulation.
The note upon the sources of international law is exceedingly instructive. Notwithstanding his long practice in admiralty and constant study of civil and foreign law, our editor adheres to his strong Saxon preference for actual judicial decisions as the best evidence of all law. The opinion of Continental writers is seen in its strongest light in a recent French author, who has pushed the doctrine as far as any one else, if not farther. After quoting several definitions of international law, Mr. Dana says:—
"Hautefeuille divides international law into two parts, which he calls primitif and secondaire,—the first containing, as he says, the principles, the absolute basis, of the law; and the second, the measures or provisions for calling up these principles and securing their execution. In the application of this theory, it will be found that the distinguished writer usually treats the primitive law, or the well or fountain of first principles, as of actual authority, where no express agreement departs from it; and so much of the practice of nations as consists in judicial decisions adopted, enforced, and acquiesced in, he considers as of less authority than the primitive law as it lies in the breast of the text-writers....
"Commentators seem agreed as to what are the sources of international law. They differ as to the relative importance and authority of these sources. Hautefeuille especially gives little weight to the decisions of prize courts, and places far before them the speculations of writers. It is noticeable that Continental writers incline the same way, although they may not go as far; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i. e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are at the same time the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions; and even those portions of the opinions of the court itself not necessary to the decision of the cause before it are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The Continental writers, on the other hand,—living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law,—are led by their education to look to but one authoritative source of law,—the decrees of legislators; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision."
The editor then sums up the respective merits of these two methods of deducing the principles of international law at a length which prevents our quoting the whole for the benefit of our readers. In conclusion he says:—
"As an offset to this [the supposed impartiality of commentators], it is to be remembered that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.
"Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage,—and that each state is, in like manner, independent, and has made like concessions for a like purpose of international advantages,—such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption, that men and communities are by nature what they have always been found to be; that the rights and duties of each man are, by Divine ordination, originally and necessarily, those at once of an individual and a member of society; and that the rights and duties of a state are, in like manner, those at once of an individual state and one among a number of states; and that neither class of these rights or duties is artificial, voluntary, or secondary.
"In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized states, but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning."
M. Hautefeuille, particularly, finds little favor with Mr. Dana. Repeatedly rules laid down by him are dismissed with the bare remark, that "he is without support either by judicial decisions, treaties, the opinions of commentators of received authority, or diplomatic positions taken by nations"; or, as in another place, that the principle broached "is merely a suggestion of the learned commentator as a possible policy, and has no support either in the practice of nations or the works of publicists";—but the editor never condescends to meet the French writer upon his own field of casuistry and speculation. And in this we think he is right. The discussion of rules existing only in a text-writer's belief in their abstract justice, would be entirely useless labor in any writer in the English language; for whatever may be the system of Continental Europe, neither the United States, nor Great Britain, nor any one of the future kindred nations that will grow out of the English colonies, will ever pay much regard to a doctrine so foreign to that noble system of law which, like their common tongue, will be a permanent proof of their common origin.
Two of the most admirable of Mr. Dana's notes are those on the "relations of the United States judiciary to the Constitution and statutes," and on "the United States a supreme government"; and they deserve careful perusal from all desirous of fully understanding our system of government. From the first we cannot refrain from making one extract, which may help to explain to our non-professional readers a difficult principle of law which we have never before seen so concisely and at the same time so clearly stated.