Volume 2 — THE LATE HENRY WHEATON.

Article in the Boston Daily Advertiser, March 16, 1848.

The death of a person like Mr. Wheaton naturally arrests attention,—even at this period of funereal gloom, when the Angel of Death has overshadowed the whole country with his wings. He was long and widely known in official relations, devoted for many years to the service of his country, studious always of literature and jurisprudence, illustrious as a diplomatist and expounder of the Law of Nations,—with a private character so pure as to make us forget, in its contemplation, the public virtues by which his life was elevated.

He died after a brief illness, accompanied by a disease of the brain, on Saturday evening, March 11, 1848, at Dorchester. On that day the remains of John Quincy Adams, who, as President of the United States, first advanced Mr. Wheaton to a diplomatic place in the service of his country,—after a long procession, through mourning towns and cities, from the Capitol, which had been the scene of his triumphant death,—were brought to their final resting-place in the adjoining town of Quincy. The faithful friend and servant thus early followed his venerable chief to the fellowship of another world.

The principal circumstances in Mr. Wheaton's life may be briefly told. He was born at Providence, on the 27th of November, 1785, and was a graduate of Brown University, in 1802. After admission to the bar, he visited Europe, particularly the Continent, where his mind thus early became imbued with those tastes which occupied so much of his later years. Some time after his return, finding little inducement to continue the practice of the law in Providence, he removed to New York. This was in 1812. Here he became the editor of an important journal, "The National Advocate,"—a paper afterwards merged in "The Courier and Inquirer." His experience in this character closed May 15, 1815. As a journalist, he is reputed to have been uniformly discreet, decorous, and able, at a time when the fearful trials of war, in which the country was engaged, added to the responsibilities of his position.

His labors as editor did not estrange him from the law. About this period he became for a short time one of the justices of the Marine Court, a tribunal now shorn of its early dignity. In 1815 he appeared as author of a treatise on jurisprudence. This was a "Digest of the Law of Maritime Captures and Prizes." In the judicial inquiries incident to the administration of the Laws of War—still maintained by the Christian world—such a treatise was naturally of much practical utility. It may also claim the palm of being among the earliest juridical productions of our country. Nor, indeed, has it been without the disinterested praise of foreign nations. Mr. Reddie, of Edinburgh, in his recent work on Maritime International Law, says, "Although it cannot be strictly called a valuable accession to the legal literature of Britain, it gives us much pleasure to record our opinion, that, in point of learning and methodical arrangement, it is very superior to any treatise on this department of the law which had previously appeared in the English language."[236] No American contribution to jurisprudence so early as 1815 has received such marked commendation abroad. Kent and Story had not then produced those works which have secured to them their present freehold of European fame.

In 1816 he became Reporter to the Supreme Court of the United States, which office he held till 1827. His Reports are in twelve volumes, and embody what may be called the golden judgments of our National Judicature, from the lips of Marshall, Livingston, Washington, Thompson, and Story.

Mr. Wheaton's time was not absorbed by these official duties. He entered much into the practice of his profession. His name appears as counsel in important causes at Washington. He was editor of divers English law books, republished in this country, with valuable notes. On several literary occasions he pronounced discourses of signal merit. One of these, in 1820, before the Historical Society of New York, touches upon his favorite theme, with which his name is now so firmly connected, the Law of Nations; another, in 1824, at the opening of the New York Athenæum, takes a rapid survey of American literature. In 1826 he published his Life of that great lawyer, William Pinkney. It is also understood that during all this period he was a frequent contributor to the "North American Review."

Nor did these accumulated labors, literary and juridical, keep him from other services. He was a member of the Legislature of New York, and in 1821 held a seat in the Convention which remodelled the Constitution of that State. In 1825 he was placed on the commission for revising the statutes of New York. This was the first effort of any State professing the Common Law to reduce its disconnected and diffusive legislation to the unity of a code. Thus is his name associated with one of the most important landmarks in American law.

All these duties and callings he relinquished in the summer of 1827, when he entered upon the diplomatic service, which opened before him a new career of usefulness. It was then that he became Chargé d'Affaires at Copenhagen, where he continued till 1835, when he was transferred by President Jackson to Berlin, as Minister Resident. In 1837 he was raised by President Van Buren to the rank of Envoy Extraordinary and Minister Plenipotentiary at the same court. On July 22, 1846, he had his audience of farewell from the King of Prussia, being recalled by President Polk. This long term of service was passed abroad with the intermission of a brief period in 1834, when he revisited his country on leave of absence.

During this protracted career in foreign countries, charged with responsible negotiations, he was not lost in the toils of office, or in the allurements of court life. He was always a student. At Copenhagen he prepared his "History of the Northmen, or Danes and Normans, from the Earliest Times to the Conquest of England by William of Normandy." This was published in 1831, both in England and in America. In 1844 it was much enlarged, and translated into French. At the time of his death he was occupied in preparing another edition. In 1838 he contributed to the Edinburgh Cabinet Library a portion of the volumes entitled "Scandinavia." By these works he earned an honorable place among our historical writers. His History of the Northmen preceded, in time, the productions of Bancroft and Prescott, which have since achieved so much renown.

From literature he passed again to jurisprudence, where he has won his surest triumphs. His "Elements of International Law" appeared in London and the United States in 1836, and again in 1846, much enlarged. This was followed by a "History of the Law of Nations in Europe and America, from the Earliest Times to the Treaty of Washington," which first appeared in French, at Leipsic, in 1841, under the title of Histoire des Progrès du Droit des Gens en Europe depuis la Paix de Westphalie jusqu'au Congrès de Vienne, avec un Précis Historique du Droit des Gens Européen avant la Paix de Westphalie. This was originally written for a prize offered by the French Institute. The question proposed was, Quels sont les progrès qu'a fait le droit des gens en Europe depuis la Paix de Westphalie? It was bold and honorable in Mr. Wheaton to venture in a foreign tongue the discussion of so great a subject. The Greek of Cicero excited the admiration of the rhetoricians at Rhodes and Athens, and the French of Gibbon was in harmony with his own swelling English style; but Mr. Wheaton, whether in French or English, is commended by matter rather than manner. On this account he was at disadvantage before the polished French tribunal. His effort received what was called mention honorable; but the prize was awarded to a young Frenchman, whose production has never seen the light. An impartial public opinion has awarded our countryman another prize more than academic. The same work in English, much enlarged, is now an authority.

Besides these classical treatises, Mr. Wheaton published an able and thorough Inquiry into the Validity of the Eight of Visitation and Search, particularly as recently claimed by Great Britain. Here he upheld the views of the American government. The acknowledged weight of his opinion in the science of law gave to his conclusions commanding influence.

On his recent return to this country, he was welcomed with many manifestations of regard, both public and private. Wherever he appeared, he was a favored guest. At the last Commencement of Brown University, he delivered the Address before the Phi Beta Kappa Society. His subject was Germany. The various departments of thought and conduct, which have been successfully occupied by the "many-sided" mind of that country, were sketched with singular ability. His voice was feeble, and, as he spoke, large numbers of the audience drew near the pulpit, filling the adjacent aisles, and standing in respectful attention, that they might follow his learned discourse.

Such were the important and diversified labors of his valuable life. Without any adventitious aids of fortune, or special favor, he achieved eminent place in the civilized world. By virtue of his office he lived as an equal among nobles and princes, while his rare endowments opened to him at will the fraternities of learning and science. And yet his qualities were not those of the courtier. Nor did any heaven-descended eloquence lend fire to his conversation or style. Both were simple, grave, reserved, like his manners, attractive rather from clearness and matter than from brilliancy or point.

His career abroad as Diplomatist was one of the longest in our history,—longer even than that of John Quincy Adams. It was not his fortune to affix his name to any treaty, like that of 1783, which acknowledged our Independence, or that of Ghent in 1814, which restored peace to England and the United States. But his extended term of service was filled by a succession of wise and faithful labors, which rendered incalculable good to his own country, while they impressed his character upon the public mind of Europe. His negotiation with Denmark was important. More important still was his careful management of our national interests in connection with the German Zollverein. Besides these conspicuous acts, with which all are familiar, there is his long and constant correspondence with the Department of State at Washington, which is known to comparatively few, although of exceeding merit.

It was his habit, contrary to the usage of many American ministers, by regular authentic communications, to keep the Government at home informed with regard to the position of foreign nations, as observed by him. All the matters which prominently occupied the Continental nations during his residence abroad, particularly those two disputes known as the Belgian question and the Egyptian question, which seemed for a while to fill the firmament of Europe with "portents dire," were discussed in these despatches with instructive fulness. These may be found in the archives of his legation, and in the Department of State at Washington, "enrolled in the Capitol," where they will be studied by the future historian.

His familiarity with the Law of Nations, from his position as a diplomatist, was enhanced by mature and thorough study. For this he was prepared by training at the bar, the influence of which may be discerned in some of his writings. He was master alike of its learning and its dialectics. It happened in Berlin that he was called to defend the rights of ambassadors against an injurious usage established or recognized by the Prussian government. All who have read his paper on this occasion will attest the force and sharpness of his unanswered argument. Strange that this task should have devolved upon an American minister! Strange that the privileges of ambassadors should have found their defender in a Cis-Atlantic citizen! His defence excited the attention of the diplomatic body in Europe. Copies were transmitted to the different courts, where, as I have understood, it was discussed, and generally, if not universally, sanctioned.

Justly eminent as a practical diplomatist, his works derived new value from the position of their author, while even his official rank was aided by his works. His was a solitary example in our age, perhaps the only instance since Grotius, of an eminent minister who was also an expounder of the Law of Nations. His works, therefore, are received with peculiar respect. Already they have become authorities. Such they are regarded by the two British writers who have since appeared in this field, Mr. Manning and Mr. Reddie. The former, in his excellent Commentaries, refers to Mr. Wheaton's work on the Elements of International Law as "certainly the best elementary book on the topic that exists";[237] while Mr. Reddie announces that "this work, although not by a British author, was certainly, at the date of its publication, the most able and scientific treatise on International Law which had appeared in the English language."[238] It is admitted that the method is superior to that of Martens, Chitty, Schmalz, or Klüber.

It cannot be disguised that his two works in this department are remarkable for careful statement and arrangement, rather than for that elegance, or glow, or freedom of discussion, by which the reader is carried captive. His Elements afford the best view yet presented of the Law of Nations, as practically illustrated in the adjudged cases of England and the United States, and in recent diplomacy. But we miss in them the fulness and variety of illustration which characterize some of the earlier writers, and especially that genial sentiment which interests us so constantly in Vattel. The History, which first appeared in French, is not less important than the Elements. Here the field is more clearly his own. This work supplies a place never before filled in the literature of the English language, if in that of any language. To all students of jurisprudence, nay, more, to all students of history, who ascend above wars and battles to the principles which are at once parent and offspring of events, this account of the Progress of the Law of Nations is an important guide.

Had Mr. Wheaton's life been longer spared, he would have found it his province, in the discharge of his recently assumed office as Lecturer on the Civil [Roman] and International Law at Harvard University, to survey again the same wide field. What further harvests he might then have gathered it is impossible now to estimate. He never entered upon these labors. The reaper was removed before he began to use the sickle.

Such was his life,—passed not without well-deserved honor at home and abroad. In those two great departments of labor, History and the Law of Nations, he is among our American pioneers. Through him the literature and jurisprudence of our country have been commended in foreign lands:—

"Fluminaque in fontes cursu reditura supino."[239]

Others may have done better in the high art of History; but no American historian has, like him, achieved European eminence as a writer on the Law of Nations; nor has any other American writer on the last great theme been recognized abroad as historian. He was a member of the French Institute; and I cannot forget, that, at the time of his admission, the question, so honorable to his double fame, was entertained by the late Baron Degérando, the jurist and philanthropist, whether he should be received into the section of History or of Jurisprudence. He was finally attached to the latter. Prescott and Bancroft belong to the former.

It is as an expounder of Public International Law that his name will be most widely cherished. In the progress of Christian civilization, many of the rules now sustained by learned subtilty or unquestioning submission, shaping the public concerns of nations, will pass away. The Institution of War, with its complex code, now sanctioned and legalized by nations, as a proper mode of adjusting their disputes, will yield to some less questionable arbitrament. But a profound interest must always attach to the writings of those great masters who have labored to explain, to advance, and to refine that system, which, though incomplete, has helped to keep the great Christian Commonwealth in the bonds of Peace. Among these Mr. Wheaton's place is conspicuous. His name is already inscribed on the same tablet with those of Grotius, Pufendorf, and Vattel.

It were wrong to close this imperfect tribute without a renewed testimony to the purity of his life. From youth to age his career was marked by integrity, temperance, frugality, modesty, industry. His quiet, unostentatious manners were fit companions of his virtues. His countenance, which is admirably preserved in the portrait by Healy, had the expression of thoughtfulness and repose. Nor station nor fame made him proud. He stood with serene simplicity in the presence of kings. In the social circle, when he spoke, all drew near to listen,—sure that what he said would be wise, tolerant, and kind.