84 ORAL ARGUMENT OP JAMES C. CARTER, ESQ. 



look no further. But the practice and usages of nations speak in bul 

 a comparatively few cases. They really cover but a very small i^art oi 

 the questions which arise, and of the still hirger number of questions 

 which, by possibility, may arise, and which at sometime or other cer 

 tainly will arise, in the intercourse of nations. In the municipal law oj 

 states the case is otherwise. Particular states have a regular establish 

 ment of courts. They employ a regular body of experts called judges, 

 The controversies between man and man are innumerable, and thej 

 have been arising for thousands of years. Therefore, the science ol 

 justice and the law of nature, so far as it is api)licable to the relations 

 between individual men, have been so assiduously cultivated in munic- 

 ipal law that we may say there is scarcely a point which remains still 

 to be determined. 



In international law it is otherwise. The points in which nations 

 come into connection with each other, or into collision with each other, 

 are comparatively few, and therefore the occasions for the study, the 

 development and the application of the law of nations have, in the 

 course of history, been comparatively few. For the most part, there- 

 fore, when new questions arise we are referred at once to the law ol 

 nature, which is the true source ui^on which the whole system of the 

 law of nations rests; and there we are entitled to look to and to take 

 as law, the plain deductions of right reason from admitted principles, 

 unless we find that those i)lain deductions have, somewhere or somehow, 

 been disavowed by the nations of the earth in their actual intercourse 

 with each other. 



I desire to read one or two more extracts from Avriters of eminence 

 upon international law, in corroboration of the views which I have just 

 expressed. I read a passage from Mr. Pomeroy, a distinguished Amer- 

 ican writer, once the head of the law school of the University of Cali- 

 fornia. He says (Lectures on Interuatioiud Law, ed. 1880, ch. I): 



Sec. 29. — (3) What is called international law in its general sense, I would term 

 international morality. It consists of those rules founded upon justice and equity, 

 and deduced by right reason, according to which independent states are accustomed 

 to regulate their nuitual intercourse, aud to which they conform their mutual rela- 

 tions. These rules have no binding force in themselves as law; but states are more 

 and more impelled to observe them by a deference to the general public opinion of 

 Christendom, by a conviction that they are right in themselves, or at least expedient, 

 or by fear of provoking liostilities. Tiiis moral sanction is so strong and is so con- 

 stantly increasing in its power and effect, that we may with propriety say these 

 rules create rights and corresponding duties which belong to and devolve ujion inde- 

 pendent statt^s in their corporate political capacities. 



Skc. 30. — Wo thus reach the conclusi(m that a large portion of international law 

 is rather a branch of ethics than of positive human jurisprudence. This fact, how- 

 ever, affords no ground for the jurist or the stuilent of jurisprudence to neglect the 

 science. Indeed, there is the greater advantage in its study. Its rules are based 

 upon abstract justice; they are in conformity with the di'ductions of right reason; 

 having no positive human sanction they appeal to a liigher sanction than do the pre- 

 cepts of niunici[)al codes. All these features clothe them with a nobler character 

 than that of the ordinary civil jurisprudence, as God's law is more perfect than 

 hunian legislation. 



The observations of Mr. Pomeroy that these rules have no binding 

 foi'ce in themselves as law is not a very correct statement. In my view 

 they liave in themselves a binding effect as law at all times and all 

 places; and as Mr. Justice Blackstoue says, greater in one sense, at 

 least, than any human law. This view was taken by the Government 

 of Great liritain in a celebrated paper, drawn up, I think, by Lord 

 Mansfield himself, which was a resi)onse to a memorial by the Prussian 

 Government, a paper which was pronounced by Montesquieu to be 



