ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 39 



it is against international law, unless it can be shown on tlie otber 

 side that a usage to tlie contrary lias become established. I shall 

 trouble you, sir, as this projiosition has been disputed, an elementary 

 one, as it seems to ine, with the thoughts of a few writers whose authority 

 is universally recognized in the world. 



It is said by my learned fiiends, that my associate, IMr. Carter, has 

 gone into the clouds, and into the region of meta])hysics, and has 

 explored the writings of those philosophers who consider what the law 

 ought to be, and what the law will be when the millennium comes, and 

 proposes to substitute that for the law. What we contend for in the 

 present case we contend is the law. It may be alarming to have it 

 shown also that it ought to be the law; but I do not think it is fatal. 

 I do not think it is fatal to the propositions we advance that my learned 

 friend, Mr. Carter, has demonstrated that they ought to be the law, 

 and thaf it is necessary that they should be the law, if any property 

 of this kind is to remain on the face of the earth for a longer time than 

 it takes to destroy it. We are putting forward what we say is the law, 

 as completely established, more completely established, by the weight 

 of what may be called authority, than any proposition in the domain 

 of international law, because this is the foundation that underlies it all. 

 I shall not read I hope at any weary length, but I must trouble you with 

 a few brief extracts that are directly to the point, not of what ought to 

 be law, but of what is the law. And I will refer in the first place to 

 the judgment of Sir Robert Phillimore in the case that has been referred 

 to before, of the Queen v. Kei/n, in the 2nd Exchequer. Let me say 

 first that in that case the question was so far a new one that the Judges 

 of England all assembled were divided as nearly as possible equally iu 

 respect of its determination. The judges not only diifered as to the 

 conclusion, but those who agreed in the conclusion differed widely in 

 the grounds upon which they rested their judgments. It was in such 

 a case that Sir Robert Phillimore used this language: 



Too rudiniental an inquiry must be avoided, but it must be remembered tliat tlie 

 case is one of primce impressionis, of tlie greatest importance both to r^ugland and to 

 otber states, and the character of it in some degree necessitates a reference to first 

 principles. 



Then what are these first principles? 



In the memorable answer pronounced by Montesquieu to be re'ponse sans replique, 

 and framed by I^ord Miinstield and Sir George Lee, of the British, to the Prussian 

 Government: "The law of nations is said to be founded upon justice, equity, con- 

 venience, and the reason of the thing, and confirmed by long usage." 



Chancellor Kent says on the same subject. (The quotation is from 

 the first volume of Kent's Commentaries pages 2 to 4.) 



The most useful and practical part of the law of nations is, no doubt, instituted 

 or positive law, founded on usage, consent, and agreement. But it would be improper 

 to separate this law entirely from natural jurisprudence and not to consider it as 

 deriving much of its force and dignity from the same principles of right reason, the 

 same views of the nature and constitution of man, and the same sanction of divine 

 revelation, as those from which the science of morality is deduced. There is a natural 

 and a positive law of nations. By the former every state, in its relations with other 

 states, is bound to conduct itself with justice, good laith, and benevolence; and this 

 application of the law of nature has been called by Vattel the necessary law of 

 nations, because nations are bound by the law of nature to observe it; and it is 

 termed by others the internal law of nations, because it is obligatory upon them iu 

 point of conscience. 



Then passing a pare of the extract which I will not take time to read, 

 though it is all very pertinent — 



"The law of nations" is a complex system, composed of various ingredients. It 

 consists of general princi])les of right and justice, e<|ually suitable to the govern- 

 ment of individuals in a state of natural equality and to the relations and conduct 



