17*2 ARGUMENT OF THE UNITED STATES. 



important and just interests of those nations, and that as against such 

 injury, however occasioned, the right of defense has always been pre- 

 served, and has always been asserted on the high sea, and even upon 

 foreign territory. It will be seen, we respectfully submit, that this 

 case presents nothing new, except the particular circumstances of the 

 application of an universal and necessary principle to an exigency that 

 has not arisen in this precise form before. 



The steadfast advance which the law of nations has made, from the 

 days of its rudiments to the present time, and which still must con- 

 tinue to be made through all time, has been and must always be by 

 the process of analogy, in the application of fundamental principles, 

 from which the rules of all new cases as they successively and con- 

 stantly arise must be deduced. Neither this nor any other system of 

 human law can stand still, for it must perish unless it keeps pace with 

 the vicissitudes of society, and meets adequately all the new emer- 

 gencies and requirements which they from time to time produce. Law 

 has its roots in the past, but its efficacy must take place in the present. 

 Says Mr. Phillimore (Int. Law, vol. 1, sec. 30) : 



Analogy has great influence in the decision of international as well 

 as municipal tribunals; that is to say, the application of the principle 

 of a rule which has been adopted in certain former cases, to govern 

 others of a similar character as yet undetermined. 



Analogy is the instrument of the progress and development of the 

 law. (Bowyer's Readings, p. 88.) 



If a precedent arising upon the same facts is not forthcoming, it is 



only because there is no precedent for the conduct complained of. The 



same right was never before invaded in the same way. That does not 



take the case out of the operation of the principle upon wdiich all 



precedents in aualogous incidents depend, and it applies with the same 



force to every case that arises within its scope. The particular precedent 



is created when the necessity for it appears. The absence of it when 



the necessity has never arisen, proves nothing. The only inquiry is 



whether the case comes within the general rule. 



But were it possible to regard the present case as in any respect out- 

 side the scope of rules hitherto established, its determination would 

 then be remitted to those broader considerations of moral right and 

 justice which constitute the foundation of international law. It is the 

 application of those cardinal principles that must control every case of 

 new impression that can arise between nations. The law of nations 



