ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 41 



Yattel is also cited on pages 22 and 23 of tlie same book, from the 

 SGtli page of bis work: 



We must, therelbn', ajiply to nations the rules of nature, in order to discover what 

 thtir obligations are, and what their rights: consequently, the law of nations la 

 originally no other than the law of nature applied to nations. 



Ferguson, page 24 of the same book, uses this language: 



Investigating thus this spirit of Itiw, we find the definition of international law 

 to consist in certain rules of conduct which reasou, prompted hi/ conscience, deduces as con- 

 sonant to justice, with such limitations and modifications as may be established bji general 

 consent, to meet the exigencies of the present state of soch't;/ as existing among nations and 

 which modern civilized states regard as binding them in tiieir relations with one another, 

 uith a force comparable in nature and degree to that binding the conscientious person to 

 obey the laws of his country. 



From Testa, the Portuguese writer, I will read from page 25 a few 

 lines: 



Although in the philosophical order natural law occupies the first place, yet in 

 the practical order of external relations, when questions are to be decided or nego- 

 tiations conducted, its rank is no longer the same; in these cases the obligations 

 contracted in the name of conventional law, in virtue of existing treaties, ai-e con- 

 sidered in the first place. If such treaties are lacking, the law of custom estab- 

 lishes the rule; and when there are neither treaties to invoke nor customs to follow, 

 it is usual to proceed in accordance with what reason establishes as just, and with 

 simple principles of natural law. 



There are other and numerous citations. I shall not, as they are in 

 print before you, take the trouble to pursue them furtlier. It will be 

 seen that Jurists, English, American, and iudeed all Jurists concur, 

 not merely in saying that the principles of justice, of morality, of right, 

 are the foundations of the law, but that in international law, which can 

 be no otherwise prescribed, they are the only resort, except when, in 

 the first place, there is a Treaty between the parties which settles the 

 question for them, or, in the second place, there is an established usage 

 or custom that settles it generally. 



But there is a passage from Vattel, which I will ask Mr. Carter 

 kindly to read for me. 



Mr. Carter. — It is his preliminary chapter to the English transla- 

 tion, page 5G, Mr. Chitty's edition, the North American edition of 1844. 



Asmenaresnhject to thelawsof nature — and as their union in civil society can not 

 have exeni])ted them from the obligation to observe those laws, since by that union 

 they do not cease to be men — the entire nation whose common will is but the result 

 of the united wills of the citizens, remains subject to the laws of nature and is 

 bound to res])ect them in all her proceedings. And since right arises from obliga- 

 tions, and as we have just observed, the nation possesses also the same rights which 

 nature has conferred upon men in order to enable them to perform their duties. We 

 must therefore apply to nations the rules of the law of nature in order to discover 

 what these obligations are and. what their rights. Consequently, the law of nations 

 is originally no other than the law of nature applied to nations. But as the appli- 

 cation of a rule cannot be just and reasonable unless it be made in a manner suit- 

 able to the subject, we are not to imagine the law of nations is precisely and in every 

 case the same as the law of nature, with the difference only of tlio subjects to which 

 it is applied, so as to allow of our substituting nations for individuals. A state 

 or civil society is a subject very different from an individual of the liuman race, 

 from which circumstances, pursuant to the law of nature itself, there result in many 

 cases very difierent obligations and rights, since the same general rule applied to 

 two subjects cannot produce exactly the same decision when the subjects are difier- 

 ent; and a particular rule which is perfectly just with respect to one subject is not 

 applicable to another subject of a quite difierent nature. There are many cases, 

 therefore, in which the law of nature does not decide between state and state in the 

 same manner as it could between man and man. We must, therefore know how to 

 accommodate the application of it to difierent subjects; and it is the art of thus 

 applying it with a precision founded on right reason that renders the law of nations 

 a distinct science. Wo call that the Necessary Law of Nations which consists in 

 the application of the law of nature to nations. It is necessary, because nations are 



