American Enterprise Institute

The American Revolution and America’s Role in the World

The Law of Nations and the Founding of the American Nation Notes

  1. Margaret MacMillan, War: How Conflict Shaped Us (Random House, 2020), 205–6.
  2. Franklin wrote, “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 . . . has been continually in the hands of the members of our congress.” Benjamin Franklin to Charles-Guillaume-Frédéric Dumas, December 9, 1775, Founders Online, https://founders.archives.gov/documents/Franklin/01-22-02-0172. Dumas had just published a new edition of Vattel’s treatise in the Netherlands. He would go on to publish translations of the American Declaration of Independence and early state constitutions, becoming an unofficial publicist for the American cause. The National Archives website Founders Online includes more than 50 letters from Franklin to Dumas in 1775–89, mostly to inform Dumas of American diplomatic initiatives.
  3. Emer de Vattel, The Law of Nations, trans. Charles G. Fenwick (1758; Carnegie Institution of Washington, 1916), vol. 1, chap. 2, sec. 21.
  4. Vattel, The Law of Nations, introduction, sec. 18.
  5. It was at least partly to uphold the Continental Army’s reputation as a reputable and honorable force that General Washington insisted on treating British (and Hessian) prisoners of war in accord with European standards of proper care. David Hackett Fischer, Washington’s Crossing (Oxford University Press, 2004), 378–79.
  6. “A Nation may depose a tyrant and refuse obedience to him.” Vattel, The Law of Nations, bk. 1, chap. 4, sec. 51. In civil war or contest over domestic authority, other states may “assist the party which seems to have justice on its side, should that party ask for help.” Vattel, The Law of Nations, bk. 3, chap. 18, sec. 296.
  7. John Quincy Adams, “Extracts from Mr Adams’ Instructions to Mr Anderson, Minister Plenipotentiary to Colombia, Dated 27th May, 1823,” in Jonathan Elliot, The American Diplomatic Code [. . .] (Washington, DC, 1834), 652. Colombia was the first of the new Latin American republics with which the United States exchanged diplomatic envoys, so the instructions to Anderson were expected to serve as a model for subsequent diplomatic ventures in the Americas.
  8. US Const. art. VI; US Const. art. III, § 2; and US Const. art. I, § 8.
  9. New York Society Library, “Historic Mount Vernon Returns Copy of Rare Book Borrowed by George Washington in 1789 to the New York Society Library,” May 21, 2010, https://www.nysoclib.org/historic-mount-vernon-returns-copy-rare-book-borrowed-george-washington-1789-new-york-society. The library does not seem to have tried to collect fines for the late return.
  10. For example, British Foreign Secretary George Canning said, “If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington, and the secretaryship of Jefferson. . . . Here, Sir, I contend is the principle of neutrality upon which we ought to act.” HC Deb. (2d ser.) (16 Apr. 1823) (8) cols. 1056–57.
  11. James Madison, An Examination of the British Doctrine Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace (London, 1806).
  12. J. B. Moore, “John Marshall,” Political Science Quarterly 16, no. 3 (1901): 402, 405, https://www.jstor.org/stable/pdf/2140254.pdf.
  13. For a concise overview highlighting major decisions, see David L. Sloss et al., eds., International Law in the U.S. Supreme Court (Cambridge University Press, 2011), chap. 1.
  14. For example, European schemes to secure
    • “the peace of that part of the world . . . [give] an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith . . . to [restrain] the impulse of any immediate interest or passion. . . . There is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations.”
    • Federalist, no. 15 (Alexander Hamilton).
  15. Federalist, no. 3 (John Jay).
  16. Federalist, no. 11 (Alexander Hamilton).
  17. Treaty of Alliance Between the United States of America and His Most Christian Majesty, Fr.-U.S., Feb. 6, 1778, 8 Stat. 6.
  18. George Washington to Henry Laurens, November 14, 1778, Founders Online, https://founders.archives.gov/documents/Washington/03-18-02-0147.
  19. John Jay to Robert R. Livingston, November 17, 1782, Founders Online, https://founders.archives.gov/documents/Jay/01-03-02-0076.
  20. Lawrence S. Kaplan, Colonies into Nation: American Diplomacy, 1763–1801 (Macmillan, 1972), chap. 10.
  21. US Const., art. III, § 1; and Andrew Jackson to Nathaniel Macon, October 4, 1795. Jackson was protesting against the Jay Treaty for (among other things) “erecting courts not heard of in the Constitution.”
  22. Andrew Jackson, “Third Annual Message to Congress,” December 6, 1831, https://millercenter.org/the-presidency/presidential-speeches/december-6-1831-third-annual-message-congress. When France delayed in delivering payment, Jackson threatened to confiscate French property in the United States to provide satisfaction—despite American appreciation of France’s “liberal institutions” since its 1830 revolution: “In maintaining our national rights and honor all governments are alike to us.” Andrew Jackson, “Sixth Annual Message to Congress,” December 1, 1834, https://millercenter.org/the-presidency/presidential-speeches/december-1-1834-sixth-annual-message-congress.
  23. Eugene Kontorovich, “The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals,” University of Pennsylvania Law Review 158, no. 1 (2009): 39–115, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1123&context=penn_law_review.
  24. “The assembly will be in its nature diplomatic and not legislative; nothing can be transacted there obligatory upon any one of the States to be represented at the meeting, unless . . . subject to the ratification of its constitutional authority at home.” John Quincy Adams to House of Representatives, March 15, 1826, American Presidency Project, https://www.presidency.ucsb.edu/documents/special-message-104. For an overview of the dispute, see David Currie, The Constitution in Congress, vol. 2, The Jeffersonians, 1801–1829 (University of Chicago Press, 2000), 212–16.
  25. In a book published in 1789, English legal reformer Jeremy Bentham urged that “law of nations” should be replaced by the new term “international law” to make clear that it dealt with “mutual transactions between sovereigns” rather than shared practices in “internal jurisprudence.” Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (London, 1789), chap. 17, para. 25. Henry Wheaton’s Elements of International Law (1836) was the first full-length treatise in English adopting this term. Wheaton had been court reporter to the US Supreme Court (1816–27) before serving as a US diplomat in Europe and shared his treatises with Marshall.
  26. Federalist, no. 43 (James Madison).
  27. Federalist, no. 51 (James Madison).
  28. James Madison, “Universal Peace,” National Gazette, February 2, 1792, https://founders.archives.gov/documents/Madison/01-14-02-0185.
  29. Federalist, no. 43 (Madison). Madison paraphrased the Declaration of Independence to make a more general point.
  30. John Adams to Elias Boudinot, September 5, 1783, in Papers of John Adams, vol. 15, June 1783–January 1784, ed. Gregg L. Lint et al. (Massachusetts Historical Society, 2010), 255.
  31. Adams to Boudinot.
  32. Alexander Hamilton, speech, June 29, 1787, in Records of the Federal Convention of 1787, ed. Max Farrand (Yale University Press, 1937), 1:466–67.
  33. Federalist, no. 62 (James Madison).
  34. Federalist, no. 63 (James Madison).
  35. Alexander Hamilton, “Pacificus No. IV,” July 10, 1793, Founders Online, https://founders.archives.gov/documents/Hamilton/01-15-02-0066.
  36. For background on this dispute, see Ruth Wedgwood, “The Revolutionary Martyrdom of Jonathan Robbins,” Yale Law Journal 100, no. 2 (1990): 229–368, https://www.jstor.org/stable/796618.
  37. James Madison, “Special Message to Congress on the Foreign Policy Crisis—War Message,” June 1, 1812, https://millercenter.org/the-presidency/presidential-speeches/june-1-1812-special-message-congress-foreign-policy-crisis-war.
  38. Independent states “may be regarded as so many free persons living together in a state of nature.” Vattel, The Law of Nations, introduction, sec. 12. “He who enters upon a war for motives of gain only, without justifying grounds, acts without any right, and wages an unjust war.” Vattel, The Law of Nations, bk. 3, chap. 3, sec. 33.