FORTY-FOURTH DAY, JUNE 23^^", 1893. 



Mr. Phelps. — At the adjournment yesterday, Sir, I had been consid- 

 ering the proposition in respect to international law which had been 

 advanced by my learned friends on the other side, particularly by the 

 Attorney-General, that nothino- could be comprehended within that 

 definition that had not received the sanction of the established usage of 

 Nations; that the requirements of justice, of ethics, of sound morality 

 between Nations were not sufficient until the further sanction had been 

 obtained of the custom of nations. I had endeavoured to point out that 

 the proposition involved this necessary consequence, that international 

 law became incapable of advance; tliat it terminated with the present; 

 that whenever any new question was presented, it necessarily fell 

 without the sco])e, and outside of the domain of international law. 

 And that the further consequence follows my learned friends' proposi- 

 tion, if it were sound ; that if a new question arose within the province of 

 international law, affecting those subjects with which international law 

 must deal in the intercourse of nations, — if there were no established 

 usage for deciding it right, the consequence would be that it must be 

 decided wrong. It will be for the Tribunal to remember what I am 

 sure they do not need to be reminded of, that the constitution of inter- 

 national arbitration is in itself a new feature in international law. 

 Only on two or three occasions in the history of the world has any such 

 thing been attempted, and those have been occasions when the issues 

 between the disputing nations were principally, if not entirely, issues 

 of fact, or of figures, which involved no questions of international law, 

 and no other novelty than always attaches to the finding of facts upon 

 evidence in disputed cases. It must be remembered, then, if such 

 Tribunals, as I am now addressing, are to exist, and are to be useful, 

 they must be authorized to meet every case of new impression which 

 it becomes necessary to decide. They are not called together, they can 

 never be called together, for the pur])oseof simply acknowledging their 

 own incapacity; for the purpose of saying "You have invited us to 

 determine this important question which must be determined one way 

 or the other between these Nations, which, if it cannot be determined 

 by arbitrament, the nation claiming the right must assert for itself. 

 You have invited us in the interests of peace and of humanity to deter- 

 mine that question, but we find that we are incapable of it, because it 

 has never arisen before." The fact that it has never arisen before is 

 the very reason why an arbitration becomes necessary. Nations do 

 not resort to Arbitration to determine principles of law which are 

 already determined and understood. There is no occasion for that. 

 No intelligent nation would undertake to dispute such a proposition. 

 It is when they differ upon the point of what is law — when the question 

 is so far undetermined by usage and custom that it cannot be unanswer- 

 ably asserted on either side, that the answer should be one way or the 

 other, it is then that the intervention of the Tribunal is agreed upon. 



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