ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 33 



be changed by purely ethical considerations, until they become, at any 

 rate, so strong that a nation is justified iu asserting them; and so 

 gradually the law becomes changed. Ou the other hand, as wlien the 

 first Napoleon undertook to carry the right of blockade, that I have 

 been speaking of, a step further, and to provide that a "paper block- 

 ade", as it was called, might be establislied by proclamation, and that 

 he might exclude the vessels of neutrals from ports, while no block- 

 ading force was present, by virtue of a proclamation, what said the 

 world to that? They rejected it. There is an illustration of an asser- 

 tion that did not become international law. Then if you have before 

 you a new question, or a new question in its application, have you 

 anything to resort to when it must be decided, excejjt the plain princi- 

 ples of right and justice, if you are able to see what they are, until the 

 opinion of the world upon it transpires? It is a proposition that can 

 be sustained by numberless illustrations. The only question can be 

 whether the point is new, or is covered by the ai)plication of an old and 

 established i)rinciple. That is the meaning of the authorities that 

 were cited in the opening argument on the part of the United States so 

 largely. That is what authors mean when they say that international 

 law is founded on the principles of right and justice and conscience. 

 They do not mean to say that established law may be defeated by 

 resort to those considerations; but they do mean to say, that is the 

 foundation, that is the source from which it is all derived. Those are 

 the principles on which we are to proceed — until the time arrives when 

 it is found that the contrary has become so far established that it is 

 necessary to respect it. I shall have to refer to some authorities on this 

 point, but the reference will be only biief. 



The President. — Does this contention of yours go farther than what 

 you would say for municipal law? 



Mr. Phelps. — No, Sir, the same principle is at the root of municipal 

 law; and I shall cite to-morrow a provision from the French Code that 

 seems to me to bear upon that. But municipal law has two resorts that 

 are not open in international law. There is the Legislature of the 

 Municipality, which can pass Statutes which are law proprio vigors. 

 Whether right or wrong, they become the law. There are the Courts 

 sitting constantly to extend and apply the general principles of law so 

 as to cover the case. 



The President. — So is Diplomacy, I might suggest. You have been 

 a Diplomatist yourself. 



Mr. Phelps. — Yes; so is diplomacy, but without the sanction attend- 

 ing the decisions of the constituted Tribunals in municipal Government. 

 Therefore, municipal law has its regulated steps of progress, either 

 through Statutes or through the Judgments of the Courts, because 

 both those sources are authority, — they make law. But when it comes 

 to the point which your question, Sir, suggests, when addressing the 

 Court and invoking the application of an established principle to a new 

 case, there you fall back on, and every Court, consciously or uncon- 

 sciously, must be guided by, the plain consideration of right or wrong, 

 until it gets to the line which separates the domain of law from that of 

 morality. Therefore, I might appeal to a Court of Justice for some 

 remedy, or redress, which morally I am entitled to, and might be met 

 with the answer, " Your claim is only a moral one. You are outside of 

 the domain of municipal law; you have sustained a wrong that, as 

 moralists and as just men, we might be glad to see redressed ; but it is 

 pot w^ithin the domain of law to deal with youj? case, That domjiiu 



B S, PT XV— -3 



