American Versions of the International Law of Christendom: Kent, Wheaton and the Grotian Tradition

Abstract

This study reopens the 19th century treatises of James Kent and Henry Wheaton, America's first jurists to systematically analyze the law of nations. It remarks on the importance that both authors assigned to international law. It explores how and why Kent and Wheaton paid homage to Grotius and to what they saw as the Dutch jurist's Protestant fashioning of an international law of Christendom. This international law the Americans described as a law of nations necessarily limited to a circle of like-minded States bound by common traditions of culture, law and morals a characterization which departed from Grotius' own universalistic preferences. It is submitted that Kent and Wheaton rejected the universalism in the Grotian tradition for two of the very reasons motivating them to emphasize the law of nations in their own works. First, the Americans were anxious to affirm the sovereignty of the United States. Second, they sought to answer positivist critiques and explain the real efficacy of intemational law in international relations. In so doing, Kent and Wheaton were not guilty of the sins of legalism - moralism sometimes ascribed to 19th century American international lawyers, but they were too limited in their vision of the discipline.