210 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



premises of fact, the law that he laid down is not to be doubted and 

 never has been doubted. There is not a case to be found that I know 

 of, there is not a writer to be found, with whose writings I am familiar, 

 that ever undertook to say that Lord Stowell was wrong. Many have 

 been found to say tliat the facts did not give rise to the necessity that 

 was claimed; many have been found to criticise the action of these 

 nations, but upon what ground? That they were wrong in their law? 

 ]^o; that they were wrong in their facts. This judgment of Lord 

 Stowell, was on the condemnation of a vessel ; it was not an abstract 

 or obiter opinion ; it was when a vessel of a neutral Power was cap- 

 tured on the high seas by British cruisers for attempting to carry on 

 a legitimate and proper commerce with ports, where there was no 

 blockading force, in violation of the paper blockade, that the question 

 came up for Lord Stowell's decision. He says in the case of the "Suc- 

 cess " in the 1st Dodsons' Rej)ort at page 133 : 



The blockade thus imposed is certainly of a new and extended kind, but has 

 arisen necessarily ont of the extraordinary de -rees issued by the ruler of France 

 against the commerce of this country, and subsists, therefore, in the apprehension 

 of the court at least, in perfect justice. 



He did not say it was an act of war; it could not be an act of war; 

 it was the seizing of a vessel of a nation with whom they were not at 

 war — a neutral vessel. 



In the case of "The Fox", in the 1st Edwards' Eeports, page 314, he 

 says: 



When the state, in consequence of gross outrages upon the laws of nations com- 

 mitted by its adversary, was compelled by a necessity which it laments, to resort to 

 measures which it otherwise condemns, it pledged itself to the revocation of those 

 measures as soon as the necessity ceases? 



stating in the clearest manner the principle upon which they rest. 



In the case of " The Snipe ", which is also in Edward's Reports, he 

 says, referring to these measures : 



In that character they have been justly, in my apprehension, deemed reconcilable 

 with those rules of natural justice by which the international communication of 

 indei)endent states is usually governed. 



That Judge had not made the discovery, for which we are indebted 

 to my learned triend, that justice did not make international law in 

 new cases between nations, but that you must find the previous sanc- 

 tion of the established usage of the world before you can execute the 

 justice that lies plainly in your way. He proceeds upon the ground 

 that in that absolutely new case, when the idea of blockade rights as 

 against neutrals was carried far beyond any assertion that ever had 

 been made before, if the necessity was such that the rules of natural 

 justice made it right and made it applicable, then, it was within the 

 principles of that international law, on which alone there could be a 

 judgment of condemnation against neutral vessels not engaged in car- 

 rying contraband of war, but simply engaged in legitimate commerce 

 with ports that w^ere not blockaded. 



Now, suppose a set of cases to which the attention of my learned 

 friends has been invited; and the failure of the attempt ol lawyers of 

 the first rank from whom everything is to be expected that their side 

 of the question admits of, to give an intelligent answer to these enquiries 

 is a stronger argument in favour of the propositions we advanced than 

 we can make. If they could be answered, surely no men in the world 

 are better qualified to do it than my three learned friends who have 

 addressed the Court. 



