40 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



of nations; of a collection of usages, customs, and opinions, tlio growth of civiliza- 

 tion and conimerco, and of a code of conventional or positive law. 



This is the point which T particularly desired to reach : 



In the ahsence of these latter regulations, the intercourse and conduct of nations 

 are to bo governed by principles fairly to be deduced from the rights and duties of 

 nations and the natiire of moral obligation ; and we have the authority of the lawyers 

 of antiquity, aud of some of the first masters in the modern school of public law, 

 for placing the moral obligation of nations and of individuals on similar grounds, 

 and for considering individual and national morality as parts of one and the same 

 science. 



The law of nations, so far as it is founded on the principles of natural law, is 

 equally binding in every age and upon all mankind. 



I refer also to the language of Sir Travers Twiss in his Treatise on 

 International Law, and an excellent treatise it is, as is universally 

 known. He divides the Law of nations as follows: 



The natural or necessary law of nations, in which the principles of natural justice 

 are applied to the intercourse between states; secondly, customary law of nations 

 which embodies those usages which the continued habit of nations has sanctioned 

 for their mutual interest and convenience, and thirdly, the conrcntionnl ov diplomatio 

 law of nations. . . Under this last head many regulations will now be found which 

 at first resulted from custom or a general sense of justice, 



Mr. Justice Story says; in the same argument the quotation will be 

 found : 



In resting on the basis of general convenience and the enlarged sense of national 

 duty, rules have from time to time been promulgated by jurists and supported by 

 courts of justice by a coui'se of judicial reasoning which has commanded almost 

 universal confidence, respect, and obedience, without the aid either of municipal 

 statutes or of royal ordinances, or of international treaties. 



And there is farther cited in the same connection and on the same 

 page a note from Mr. Amos in his edition of Mannings International 

 Law: 



Though the customary usages of states in their mutual intercourse must always 

 he held to aft'ord evidence of implied assent, and to continue to be a mean basis of 

 a structure of the law of nations, yet there are several circumstances in modern 

 society which seem to indicate that the region of the iniluonce will become increas- 

 ingly restricted as compared w^ith that of the influence of well-ascertained ethical 

 principles and formal convention. 



There Mr. Amos with the acuteness that usually characterises his 

 observations, gives to the ethical considerations an increased influence 

 in the determination of what is called International Law, even over the 

 usage and customs which he admitted may control it. 



Mr. Wheaton, the American writer, refers to this; and I read from 

 page 14 of the United States Argument. He has this passage to the 

 same point : 



International law, as understood among civilized nations, may be defined as con- 

 sisting of those rules of conduct which reason deduces, as consonant to justice, from 

 the nature of the society existing among independent nations; with such definitions 

 and modifications as may be established by general consent. 



Says Ortolan, and I read from the translation in the same argument; 

 at page 21 : 



It is apparent that nations not having any common legislator over them have fre- 

 quently no otlier recourse lor determining their respective rights but to that reason- 

 able sentiment of right and wrong, but to those moral truths .already brought to 

 light and to those which are still to bo demonstrated. This is what is me.ant when 

 it is said that natural law is the first basis of international law. This is why it is 

 important that Governments, diplomats, and publicists that act, negotiate, or write 

 upon such matters should have deeply (rooted) in themselves this sentiment of right 

 and of wrong which we have just defined, as well as the knowledge of tlft point of 

 certainty (point de certitude) where the human mind has been aide to attain this 

 order of truths. 



