ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 31 



In the first place, we contend that this case of onrs, this right of 

 proi)erty or protection, call it what yon please, is as completely estab- 

 lished by the just principles of international law as it is by the consid- 

 eration of ethics and morality. 



But waiving- that point for the moment, which Ave will discuss by and 

 by, suppose it is not. Supi)ose you have here i)reseuted to you for 

 decision a question of international law, which can be said to be a new 

 one. Such cases are of very rare occurrence. That place and those 

 transactions in this world which the "gladsome light of jurisprudence" 

 has not reached are very few. But suppose you encounter one here. 

 The question confronts you as a Tribunal, and, whether it is new or old, 

 it must be decided; and if in looking over the fiedd of what is called 

 authority you are unable to say that it has been provided for before, 

 what then ? Shall it be decided right, if what is right is plain and clear 

 not only to the legal sense, but to the most common and way-faring 

 sense in the world f " Oh no" says my learned friend; ''you must not 

 do that. The nations have not consented." But you nnist decide it. 

 If you cannot decide it right, you must decide it wrong. Have the 

 nations consented to that? Is that what the nations have agreed ? You 

 are in a position where you must go one way or the other, where you 

 cannot fall back and say, "We do not know; it is too soon to decide 

 this question. The nations have not agreed. It is jilain how it ought 

 to be decided, if we were at liberty to do it, but we are admonished 

 that no considerations of that sort constitute international law, and that 

 the sanction of the nations must first be had." Therefore, what is the 

 alternative? Decide it wrong? If this is — what I altogether deny — 

 such a case as that; if this is a new question; if it is one upon which 

 you close your books, having searched them in vain for light, the 

 alternative is to decide it right or to decide it wrong. If nations have 

 not agreed that you may decide it right, then you must assume that 

 they have agreed that you should decide it wrong. That is the irresisti- 

 ble logical conclusion. My friend does not help you out of that dilemma 

 with his definition of International law. 



What is another consequence of his proposition? It is that inter- 

 national law can never advance another step. The last book is written ; 

 the last addition has been made. It is like the Mosaic law, written, 

 laid up, historic, and cannot be extended another step in the adminis- 

 tration of human afl'airs. In other words it is a dead law, because any 

 system of law perishes when it ceases to keep up with all the vicissi- 

 tudes, emergencies, requirements and conditions of human afl'airs; 

 when its principles cease to be elastic enough to comprehend and take 

 in every human transaction that can possibly occur on the face of the 

 earth, and to settle all the rights that grow out of it, it perishes, as 

 systems of law have perished before. 



How can it advance? Howhns it advanced? What has been tlie 

 growth of International law? There is no legislature to propound it, 

 there are no Courts comi)etent to declare it. There can be no general 

 convention of nations called to agree to it. If you put a provision into 

 a Treaty, that only makes the law of a contract, that is to say a law that 

 binds the two parties to law which all the rest of the world may disre- 

 gard. That is not international law. How then has it arisen? Jt iias 

 advanced from its earliest rudiments by a nation asserting for itself in 

 every new emergency, under every new condition, in every step forward 

 that human affairs liave taken, what it claims to be right. 



What it claims to be riglit, but that does not make it so. It remains 

 to be seen what the world says, what intelligent mankind say. And 



