ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 209 



tact to a gravely injurious extent with an important national interest, 

 in which that nation has not the right to protect itself; whether there 

 is any ease in whicli the right of the individual, which wouhl otherwise 

 be inoffensive and unobjectionable, must not give way; whether it is 

 in time of peace or in time of war; whether it applies to one national 

 interest or another; whether it is an industry, a commerce or a trade; 

 wherever it is any interest that can be dignitied with the name of a 

 national interest important to be maintained, and which is injuriously 

 assailed. 



What was the history of all the warfare between England and the 

 continental countries which figures so prominently in the diplomatic 

 and general history of the world of those days, the early years of 

 this century"? When this was incidentally alluded to, the President 

 remarked that it did not begin ou the side of France or Napoleon ; it 

 began with Prussia. It was Prussia, in the first place, in the year 1806, 

 that put forth a decree closing ports of that country on the North Sea 

 and the rivers to English shipping, a nation with which they were at 

 peace. I do not discuss the necessity or the propriety of that at all ; 

 I should be inclined to conclude at this day that there was no justifica- 

 tion for it. By way of retaliation, the British Government gave notice 

 tliat they established a sort of paper blockade from the Elbe to Brest, 

 where they had no force, with certain restrictions that I need not go 

 into. That was their response. Then Napoleon came out with his 

 Berlin Decree, and declared the British Islands to be under blockade 

 and commerce with them as well. 



Mr. Justice Harlan. — Where do you refer to for that? 



Mr. Phelps. — I was referring to Woolsey's International Law for 

 the convenience of the dates, at page 352. There is a very clear state- 

 ment of the history. Then in 1807 came the Orders in Council from 

 Great Britain declaring that no vessel should be permitted to sail from 

 one port to another (I am now quoting from the Order) both of which 

 ports should belong to, or be in the possession of France or her Allies 

 or be so far under their control that British vessels might not trade. 

 A second Order in Council declared that all the ports of France, her 

 Allies and Colonies, and also States at peace with Great Britain, and 

 yet excluding her flag, sliould be under the same restriction as to peace 

 and commerce as if blockaded by British forces. It was an assertion 

 by those nations of the right to extend the j)rinciple of blockade far 

 beyond any limit it had ever reached before. Instead of confining it, 

 as established rules confine it, to those ports which are blockaded by 

 the presence of an effectual force, they assumed the right to declare a 

 bl( ckade on paper as against neutrals. What was done against their 

 adversaries, has nothing to do with these questions; they are simply acts 

 of war. As against neutrals, they excluded from ports not blockaded 

 honest, legitimate commerce. Here, again, I shall not occu})y myself 

 at all with the discussion of the necessity of those things on the part 

 of any of those countries, — on the part of Prussia, in the first place, 

 on the part of England in the second place, on the part of France in 

 the third place, and, finally, of the United States who were drawn into 

 it by the embargo they established, and the bitterness that came from 

 that was only quenched in the War of 1812. The principle was, and 

 that great lawyer. Lord Stowell, affirms it in the clearest manner, that 

 all those things, extreme as they were, were within the right of the 

 nation, if the vecessity of the case required it. We have cited some of 

 these cases. It is always agreeable to refer to the language of so great 

 a lawyer as Lord Stowell on any subject, and, granting him his 



B S, PT XV 14 



