ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 83 



The same gvent authority when sitting as a judge in tlie case of La 

 Jeune Eugenie, in the second of Mason's Eeports, p. 449, says: 



But I think it may bo unequivocally affirniecl tliat every doctrine that may be 

 fairly deduced by correct reasoning from the rights and duties of nations and' the 

 nature of moral obligations may theoretically be said to exist in the law of nations; 

 and, unless it be relaxed or waived by the consent of nations, which may be evi- 

 denced by their general practice and custom, it may be enforced by a court of justice 

 wherever it arises in judgment. 



Tlie main foundation of international law is, therefore, the law of 

 nature, and it is a system not evidenced by any written code, but is a 

 body of moral rules. But it is a body of moral rules, at the same time, 

 as to all the particulars of which men are not absolutely agreed. There 

 are differences in the moral convictions of different men, and there are 

 di (Terences in the moral convictions of the same people and the same 

 nation at different periods of time. Law is a progressive system advanc- 

 ing step by step with human progress, and it is constantly aspiring, as 

 it were, to reach a more complete liarmony witli theoretical moral rules. 

 We cannot, therefore, in applying international law apply those moral 

 rules which we ourselves may deduce from our study of moral precepts. 

 Others may not agree with us; but still there is a great body of plain 

 and simple moral rules to wliich all men, and all nations, may safely be 

 presumed to agree, and to that extent we may enforce them. It is, 

 nevertheless, true that in human jurisprudence the actual doctrines 

 which are enforced upon the individuals of a municipal state, or which 

 are yielded to and recognized by nations, do not always come up to the 

 elevated standard of the law of nature. That is a system of very high 

 standards, not at all times actually recognized m the practice of men. 

 Where these standards do thus stand above the actual practice of men, 

 what we have to enforce, — as we can enforce only what is agreed 

 upon, — is the rules so far as they are actually recognized. 



That truth has been rather strikingly illustrated in the case of the 

 slave trade. Very few enlightened men could be found who would not 

 say that the slave trade was essentially and absolutely wrong. Very 

 few could be found who would not say that it was absolutely contrary 

 to the law of nature; but is it against human law? Few of tlie nations 

 of the world had, until recently, so far recognized the pure and true 

 principles of natural law as to carry them out to the consequence of 

 forbidding the slave trade. That question has arisen judicially before 

 several tribunals. It arose in the Supreme Court of the United States, 

 and called for the consideration of Chief Justice Marshall. The ques- 

 tion was whether the Supreme Court of the United States could execute 

 a municipal law, which declared the slave trade to be piracy, as against 

 the citizens of another nation. He held that the slave trade was 

 undoubtedly agains|j the law of nature, but at the same time, taking 

 into consideration the extent to which the nations of the earth had 

 been addicted to the practice, he said it was impossible to declare that 

 it was against the law of nations; and he, therefore, held that a munic- 

 ipal law of the United States declaring the slave trade to be piracy 

 could not be executed against the citizens of another nation. A similar 

 decision upon similar grounds was made by a distinguished English 

 judge, equally illustrious. I refer to Lord Stowell. 



Where, then, are we to look for the evidence which is to enable us to 

 ascertain what the law of nations is in any particular case! First, let 

 me say, to the actual practice and usacjes of nations; for the practice 

 and usages of nations must evidence the points uj)on which they are 

 agreed; and where the practice and usages of nations speak we need 



