38 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



manldiul will go on that subject, it is not merely tlie presumption of 

 comity, the presumi^tion of courtesy which obtains inexorably in all the 

 intercourse of nations, whereby — (whatever they may think) — they are 

 compelled to the external courtesy of assuming that the other nation 

 means to do what is right. Why, Sir, in any diplomatic correspondence 

 that ever took place, or that can take place, between nations, is there 

 anything that would bring it to a more speedy and a more proper termi- 

 nation than for one party to permit itself to insinuate in its correspond- 

 ence that the other side does not mean what is right? Can it be carried 

 any further? Will any nation submit to that"? If its adversary, its 

 opponent,its brother nation, so far forgets the proprieties and amenities 

 which are observed between nations, as to charge, even indirectly or 

 remotely, that it is not the purpose of the nation with which it is dealing 

 to do right — that it means to do wrong — there is the end of the discus- 

 sion. Until that is withdrawn and apologised for, it can be carried no 

 further with any self respecting nation. 



JSTo diplomatic representative would for a moment, in a question that 

 was the subject of discussion or negotiation, permit himself to send 

 forth a document that he had not carefully revised for that i)urpose 

 alone, to see if, in the warmth of debate, in the earnestness of his con- 

 viction, he had used one word that could possibly be construed as an 

 intimation that it was not the intention of the nation with which he 

 was dealing to do what was right and what was just. 



I have pointed out what appear to me, with much deference to my 

 learned friends, to be the necessary results of their definition of inter- 

 national law. Let me now state onr proposition. I have stated theirs. 

 I believe I have stated it fairly. What is our ])roposition in the place 

 of it? It is that the law of nations is in everv case, and all cases of 

 new impression, what can be seen to be just and right, what the human 

 conscience, what the sense of right and wrong, what the general ideas 

 of morality, ethics, and humanity, tluit prevail in the world, recognize 

 as right. You maj^ call it the law of luiture if you please. It is often 

 called so by distinguished writers. My learned friend objects to that. 

 Then let him call it by some other name if he likes it better. I care not 

 what it is called. That is what constitutes the law of nations in every 

 case that can possibly arise between nations, except where the usage of 

 nations has settled the jjarticular point or question otherwise. 



As I said yesterday, Ave do not contend that we are to harangue a 

 Court of Justice or any tribunal that has to deal with such matters in 

 opposition to established rules of international law, on the ground that 

 they contravene justice or morality. Where they do, a gradual change 

 will be brought about. The law will be kept abreast somehow of the 

 general sentiments of mankind. But in addressing a tribunal in a 

 particular case, we do not contend that we can abrogate an established 

 rule of law by pointing out, if we were able to point out, that the true 

 and sound morality was the other way. Therefore, I say there is noth- 

 ing of international law, and there never can be anything in inter- 

 national law except these recognized principles of right and justice 

 between nations, that obtain between nations as far as they are appli- 

 cable, until they are met by a proposition of law that has become so far 

 established by the usage of nations, that a tribunal is not at liberty 

 to disregard it. Abstract principles are of no value in a case of this 

 sort, unless they apply to the concrete case before us. It is much less 

 important to eidighten mankind than to do justice in the case to be 

 determined. If we are right in the facts we assert, if from those facts 

 the character of the conduct which is attempted to be jnstilied, is made 

 plain and clear as oi^posed to justice, morality, and sound policy, then 



