32 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



peradventnre by the g^eneral acquiescence of men, by the approval of 

 wise men, by the endorsement of Courts of Justice — in all ways in which 

 the sentiment of the world transpires, the claim may bye and bye come 

 to be what we call settled — no longer to be discussed. And the history 

 of international law is simply the history of those assertions that have 

 been successfully made by nations in their own behalf on the basis of 

 what they thought was right and under the pressure of what they 

 thcmght to be a necessity, or at least a propriety — the assertion I say 

 of propositions and principles which have thus been gathered by the 

 subsequent general concurrence of men into the purview of what is 

 called international law. 



Suppose, Sir, that any proposition, that if stated now would be said 

 to be perfectly settled, was presented to a Court for the hrst time. 

 Suppose there never had been a blockade of a port in the history of 

 the world. Suppose now for the lirst time in a warfare between two 

 great maritime Powers, one of them sends a squadron and blockades 

 the port of another and stops commerce, trade and intercourse, and 

 gives notice that it will capture and confiscate any vessel that under- 

 takes to violate the blockade and carry on any trade, however innocent. 

 Another nation — a neutral, says: "We recognize no such law as that. 

 We are not parties to this war. We are engaged in an innocent, a 

 lawful trade. We desire to continue it. We are not to be put down 

 by either of these belligerents; we shall go in;" — and such a vessel is 

 captured and brought up for condemnation. What shall the Court of 

 the nation who has made that assertion say to such a case? Why, that 

 nations have never agreed to this. That woukl be quite true. It is the 

 first case that ever occurred. It is the first vessel that ever was seized 

 for attempting to violate the first blockade that ever was made. What 

 are you going to do with itf You must decide it one way or another. 

 You must confiscate the vessel or let it go. 1 might continue these illus- 

 trations by referring to every proposition that might be agreed by 

 international lawyers to be among the settled propositions. Suppose 

 it is presented now for tlie first time. Why, the question must be — 

 and no other ground could be found for dis])osing of it — what is right 

 under the circumstances of the case? What do the necessities of the 

 nation that has established this blockade require? What is it that 

 the just defence of its interests needs? 



That must be the resort because there is no other; and unless there 

 had been some first case, there woukl be no international law to this 

 day. Piracy never would have become an offence against nations. 

 How came it to be an oft'ence against nations? How came it to be on 

 the open seas a business that anybody could interfere with, except the 

 vessel that was attacked. How came it to pass that if an American 

 pirate should capture a British vessel, a French cruiser might carry 

 the pirate in for i)rosecution to a French Court, if France chose to 

 empower her Courts to deal with such cases? It came to pass because 

 under the pressure of the necessity, the right came to be asserted. 

 The justice of the claim and the necessity of the case were so far 

 recognized that the world approved of it; and it is by these suc(;essive 

 stei)S, and by these steps alone, that every single proposition that may 

 to-day be successfully affirmed to belong to the domain of international 

 law had its origin, obtained its maturity and passed under the sanction 

 which Courts of fJustice and international obligations confer. 



Now what is our proposition ? It is tliat, where questions-have become 

 settled in this way, they establish the law, and the law is not open to 



