ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 127 



outside the jurisdiction, because they can be enforced in no other way. 

 If he declines to send the ship, or the cruiser, or the armed force, then 

 it is not enforced; but if he sends it, then it is enforced; and then the 

 question arises between that nation and the other that is affected, "Is 

 this a necessary thing to do in protection of your interest? Is it a 

 reasonable thing to do?" The regulation then becomes, in the first 

 place, through the statute, obligatory upon the citizens. It becomes 

 in the second place notice to the world. It becomes, in the third place, 

 the guiiie and the measure for the action of the executive, not necessarily 

 to control it, because he must act upon his own discretion ; but the guide 

 and the measure that is suggested to him, which is analogous to what 

 is enforced against his own people. 



Kow, I have dwelt longer than I intended upon a distinction that 

 is without a substantial diiterence, a distinction that is technical, that is 

 theoretical, as to the precise legal ground upon which this exercise of the 

 right of defence stands. It may be supported and it is supjiuorted by the 

 most respectable authority, upon either of these two theories, — either in 

 the proper case, in the necessary case, that the jurisdiction of the Gov- 

 ernment itself goes far enough, or that, if you terminate the jurisdic- 

 tion at an arbitrary line, then the power of the Government in the 

 exercise of self-defence, as suggested and guided and directed by the 

 provisions of the statute, is made reasonable, is notified to the world, 

 and is enforced in that way. 



Now, still a little further on this subject of national self-defence in 

 respect to its theory. What is the right and the limit of national self- 

 defence? As I have said before, it is the first of all national rights; it 

 is the most important of all, — it may be the most necessary of all. It 

 goes, or it may go, to the existence of the nation; it may stop much 

 short of that. 



Perhaps you will pardon me for reading some extracts. I read first 

 from Vattel : 



Since, then, a nation is obliged to preserve itself, it has a right to everything 

 necessiiry for its preservation, for the law of nature gives us a right to everything 

 ■without wliich we can not fultill our obligations. 



A nation or state has a right to everything that can help to ward off imminent 

 clanger and to keep at a distance whatever is capable of causing its rnin, and that 

 from the very same reasons that establish its right to things necessary to its j)re8- 

 ervation. 



Says Mr. Twiss, part I, section 12, of his book on International Law: 



The right of self-defence is, accordingly, a primary right of nations, and it may 

 be exercised, either by way of resistance in an immediate assault or by way of pre- 

 caution against threatened aggression. The indefeasible right of every nation to 

 provide for its own defence is classed by Vattel among its perfect rights. 



And Phillimore, International Law, chapter 10, sections 111 and 112 

 says: 



The right of self-preservation is the iirst law of nations, as it is of individuals. For 

 international law considers the right of self-preservation as prior and paramount to 

 that of territorial inviolability. 



And says Mr. Hall in his Treatise on International Law: 



In the last resort almost the whole of the duties of states are subordinated to the 

 right of self-protectiou. Where law affords inadequate protection to the individual, 

 he must be permitted, if his existence is in question, to protect himself by whatever 

 means may be necessary. There are, however, circumstances falling short of occa- 

 sions upon which existence is immeiliately in question, in which, through a sort of 

 extension of the idea of self-preservation to include self-protection against serious 

 hurts, states are allowed to disregard certain of the ordinary rules of law, in the 

 same manner as if their existence were involved. 



If a nation is ()l)liged to preserve itself, it is no less ol)]iged carefully to pres(-rve 

 all its members. Tlie nation owes this to itself, since the loss even of one of its 



