Open Collections

BC Historical Books

BC Historical Books

BC Historical Books

Fur-seal arbitration. Argument of the United States before the Tribunal of Arbitration convened at Paris… United States 1893

Item Metadata

Download

Media
bcbooks-1.0222414.pdf
Metadata
JSON: bcbooks-1.0222414.json
JSON-LD: bcbooks-1.0222414-ld.json
RDF/XML (Pretty): bcbooks-1.0222414-rdf.xml
RDF/JSON: bcbooks-1.0222414-rdf.json
Turtle: bcbooks-1.0222414-turtle.txt
N-Triples: bcbooks-1.0222414-rdf-ntriples.txt
Original Record: bcbooks-1.0222414-source.json
Full Text
bcbooks-1.0222414-fulltext.txt
Citation
bcbooks-1.0222414.ris

Full Text

Array         FUR-SEAL ARBITRATION.
 ARGUMENT
OF
 The United States
BEFORE THE 
TRIBUNAL OF ARBITRATION 
CONVENED AT PARIS 
UNDER THE
PROVISIONS OF THE TREATY BETWEEN THE UNITED 
STATES OF AMERICA AND GREAT BRITAIN, 
CONCLUDED FEBRUARY 29, 1892.
^•♦•^ 
WASHINGTON, D. C.: 
GOVERNMENT PRINTING OFFICE. 
1893.  TABLE OF CONTENTS.
FIRST.
Page
What law is to govern the decision*., ——,—«^—*»».*........**-*,*»*****.        1-9
Appendix to part, first (Mr. Carter's, argument).....» «. ..—**      10-26
Citations from* writers upon the law of nature and nations, showing
the foundation of international law, its relations to the law of
nature, and the sources from which the knowledge of it is to^be
derived.— .... - ...  - .......—..~~~. ~-. -~^. . 10
SECOND.
The acquisition by Russia4 of jurisdictional or other rights over Bering' Sea
and the transfer thereof to the United States ........'.       27-40
THIRD.
The property of the United States in the Alaskan seal herds, and1 ifeeirright
to protect their sealing interests and industry |    41-107
L The property of the United Statesin the Alaskan seal herd  41
The form of the institution—community and private property. 57
Ownership not absolute  58
Summary of doctrines established  68
Application of the foregoing principles to the question of property in the Alaskan herd of seals .<. .^^w^.,^-*..^.,. „ 69
Principal facts in the life of the fur-seal    75
Appendix to part third, division I (Mr. Carter's argument)  108-129
Authorities upon the subject of property in animals, ferce naturae        108
II. The right of the United States to protect their sealing interests and
industry  130-179
Appendix to part third, division II, (Mr. Phelps Argument)   180-189
Additional authorities on the question of property.... 180
FOURTH.
Concurrent regulations -  190-214
FIFTH.
Claims for compensation 215-227
I. Damages claimed by the United States   215
II. Damages claimed by Great Britain  217
ni IV
TABLE  OF  CONTENTS.
SIXTH.
Page.
Summary of the evidence  ........ 228r-313
I. The general nature and characteristics of the fur seal   230
II. The difference between the Alaskan and the Russian fur-seals .. 232
A. The herds are different   233
B. The Alaskan does not mingle with the Russian herd   241
C. The Alaskan fur-seals have but one home, namely, the Pribilof
Islands.   They never leave this home without the animus
revertendi, and are never seen ashore except on those islands.. 249
TTT. Movements of the seals after the birth of the young   251
IV. The entire office of reproduction and rearing of young is and must
be.performed on land    254
V. The pup is entirely dependent upon its mother for nourishment for
several months after its birth	
The cows will suckle their own pups only, and the suckling is
done on land      261
VI. The cows, while suckling, go to the sea for food, and sometimes to
distances as great as 100 and 200 miles, and are during such
excursi ons exposed to capture by pelagic sealers   266
VH. Death of the cow causes the death of the pup  269
VIII. The fur-seal is a polygamous animal, and the male is at least four
times as large as the female. As a rule, each male serves
about fifteen or twenty females, but in some cases as many
as fifty or more (Case of the United States, p. 327) . . 286
IX. Destruction by pelagic sealing and its extent—the remedy proposed
by the British Commissioners—the true and only remedy consists in absolute prohibition of pelagic sealing ..... 295
SEVENTH.
Points in reply to the British Counter Case  314-327 Washington, February 23,1893.
Sir : We have the honor to hand you herewith the argument prepared by us as counsel of the United States, in order that in pursuance
of Article Y of the treaty between the United States and Great Britain,
of 29th February, 1892, it may be presented to the Tribunal of Arbitration constituted by that treaty.
Very respectfully, your obedient servants,
E. J. Phelps.
J. 0. Carter.
H. M. Blodgett.
F. R. C/OUDERT.
Hon. John W. Foster,
Agent of the United States.  ARGUMENT OF THE UNITED STATES.
The undersigned, counsel for the United States, conceive that before
entering upon the argument which it has been made their duty to prepare, they owe more than a formal and ceremonious expression of their
sense of the importance and dignity of the occasion and of the august
character of the Tribunal which they are to address. Instances have
heretofore occurred in which nations have submitted their controversies
to peaceful arbitration j but the most important of them have been
cases in which mere pecuniary reparation was sought in respect to acts
which could not be recalled. To-day two most powerful nations agree
that their conflicting claims to permanent dominion shall be reconciled
and determined without a resort to those methods of violence which
carry with them such limitless destruction and suffering. A just homage is thus paid to the civilized sentiment of mankind that war is seldom, if ever, necessary j and that the conclusions of reason should be
made to supersede the employment of force.
FIRST.
WHAT LAW IS TO GOVERN THE DECISION 1
The undersigned believe it to be in a high degree important that it
should at the outset be clearly understood what principles and rules
are to guide the Arbitrators in reaching their conclusions. Otherwise
no argument can be intelligently framed. We do not indeed apprehend that there can be any serious difference of opinion upon this
point.
The consciousness and immediate conviction of every one having any
part in the proceeding—Arbitrators and counsel alike—might be safely 2 ARGUMENT   OP  THE  UNITED   STATES.
appealed to for the response that the determination must be grounded
upon principles of right. It can not be that two great nations have voluntarily waived their own convictions and submitted their rival claims to
the determinations of caprice, or merely temporary expediency. It is not
to such empty and shifty expedients that national pride and power have
paid their homage.   The arbitrament of force can be worthily replaced
only by that of right. This Tribunal would be robbed of its supreme
dignity, and its judgment would lose its value, if its deliberations
should be swayed in any degree by considerations other than those of
justice. Its proceedings would no longer be judicial. The nation for
which the undersigned have the honor to be retained is prepared to
accept and abide by any determination which this Tribunal may declare
as the just conclusion of law upon the facts as established by the proofs.
It can not be content with any other.
But what is the rule or principle of right? How is it to be described
and where is it to be found? The answer to this question, though not
so immediately obvious, is yet not open to doubt. In saying that the
rule must be that of right, it is intended, and indeed declared, that it
must be amoral rule, a rule dictated by the moral sense; but this may
not be the moral sense as found in any individual mind, or as exhibited
by the concurring sentiments of the people of any particular nation.
There may be—there are—differences in the moral convictions of the
people of different nations, and what is peculiar to one nation can not
be asserted as the rule by which the conduct of another nation is to be
controlled. The controversy to be determined arises between two dif
ferent nations, and it has been submitted to the judgment of a tribunal
composed, in part, of the citizens of several other nations. It is immediately obvious that it must be adjudged upon principles and rules
which both nations and all the Arbitrators alike acknowledge; that is
to say, those which are dictated by that general standard of justice
upon which civilized nations are agreed; and this is international law.
Just as, in municipal societies, municipal law, aside from legislative
enactments, is to be found in the general standard of justice which is
acknowledged by the members of each particular state, so, in the larger
society of nations, international law is to be found in the general standard of justice acknowledged by the members of that society. There is,
indeed, no legislation, in the ordinary sense of that word, for the
society of nations; nor in respect to, by far, the larger part of the
affairs of life is there any for municipal societies; and yet there is
ess WHAT  LAW  IS  TO   GOVERN  THE  DECISION
I
for the latter an always existing law by which every controversy
may be determined. The only difference exhibited by the former is
that it has no regularly-constituted body of experts, called judges,
clothed with authority to declare the law. And this distinction is
wiped away in the case of the present controversy by the constitution of this tribunal. That there is an international law by which
every controversy between nations may be adjudged and determined
will scarcely be questioned anywhere; but here no such questioning
is allowable. The parties to the controversy are, to employ a word
familiar to them, estopped from raising it. They have voluntarily made
themselves parties to a judicial proceeding. For what purpose is it
that these nations have submitted rival claims to judicial decision if
there is no legal rule which governs them ? Why is it that they have
provided for the selection of arbitrators preeminent for their knowledge of law, except that they intended that the law should determine
their rival claims? Nay, what is the relevancy, or utility, of this very
argument in which we are engaged unless there is an agreed standard
of justice to which counsel can appeal and upon which they can hope
to convince? The undersigned conceive that it will not be disputed
that this arbitration was planned and must be conducted upon the assumption that there is no place upon the earth, and no transaction
either of men or nations which is not subject to the dominion of law.
Nor can there be any substantial difference of opinion concerning
the sources to which we are to look for the international standard of
justice which the undersigned have referred to as but another name
for international law. Municipal and international law flow equally
from the same source. All law, whether it be that which governs the
conduct of nations, or of individuals, is but a part of the great domain
of ethics. It is founded, in each case, upon the nature of man and the
environment in which he is placed. The formal rules may indeed be
varied according to the differing conditions for which they are framed,
but the spirit and essence are everywhere and always the same. Says
Sir James Mackintosh:
The science which teaches the rights and duties of men and of states
has in modern times been styled " the law of nature and n ations." Under
this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various
relations of human life; as they regulate both the obedience of citizens
to the laws; and the authority of the magistrate in framing laws and administering government; and as they modify the intercourse of independent commonwealths in peace and prescribe limits to their hostility 4 ARGUMENT OF THE UNITED STATES.
in war.   This important science comprehends only that part of private
ethics which is capable of being reduced to fixed and general rules.1
And Lord Bacon has, in language often quoted, pointed to the law
of nature as the source of all human jurisprudence:
For there are in nature certain fountains of justice, whence all civil
laws are derived but as streams, and like as waters do take tinctures
and tastes from the soils through which they run, so do civil laws vary
according to the regions and governments where they are planted,
though they proceed from the same fountain.2
This original and universal source of all law is variously designated
by different writers; sometimes as "the law of nature," sometimes as
"natural justice," sometimes as "the dictates of right reason;" but,
however described, the same thing is intended. "The law of nature"
is the most approved and widely employed term. The universal obligation which it imposes is declared by Cicero in a passage of lofty
eloquence which has been the admiration of jurists in every succeeding
age.3
And the same doctrine is inculcated by the great teacher of the laws
of England in language which may have been borrowed from the greai
Bom an:
This law of nature being coeval with mankind, and dictated by God
himself, is, of course, superior in obligation to any other. It is binding
over the globe, in all countries, and at all times; no human laws are of
any validity if contrary to this, and such of them as are valid derive
all their force and all their authority, mediately or immediately, from
this original.4
The dependency of all law upon the law of nature is happily expressed by Cicero in another often quoted passage: " Lex est suprema
ratio insita a natura quce jubet ea quae facienda sunt, prohibetque con-
1 Dissertation on the Law of Nature and Nations.
8De Augmentis Scientiarum.
3"Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans,
sempiterna, quae vocet ad omcium jubendo, vetando a fraude deterreat, quae tamen
neque prohos frustra jubet aut vetat, nee improbos j ubendo aut vetando movet. Huic
legi nee obrogari fas est neque derogari ex hae aliquid licet neque tota abrogari potest, nee vero aut per senatum aut per populum solvi hac lege possumus, neque est
quaerendus explanator aut interpres ejus alius, nee erit alia lex Romae, alia Athenis,
alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex et sempiterna
et immutabilis continebit unusquisque erit communis quasi magister et imperator
omnium deus: ille legis hujus inventor, disceptator, lator, cui qui non parebit, ipse
se fugiet ac naturam hominis aspernatus hoc ipso luet maximas poenas, etiam si
caetera supplicia quae putantur, effugerit."   (De Republica, Lib. HI. Cap. XXH, $ 33.)
4 Blackstone, Com., Book I, p. 41, WHAT  LAW  IS  TO   GOVERN  THE   DECISION*!
traria.m And it is very clearly illustrated by the fact that the great
expositors of the Roman law in seeking for a concise formula which
would express its original and fundamental principles, have simply
borrowed or framed a statement of the dictates of natural justice:
" Juris precepta sunt hcec: honesta vivere, alterum non Iwdere, suum
euique tribuere."2
Some writers have been inclined to question the propriety of designating as law that body of principles and rules which it is asserted are
binding upon nations, for the reason that there is no common superior
power which may be appealed to for their enforcement. But this is a
superficial view which has received no considerable assent. The public opinion of the civilized world is a power to which all nations are
forced to submit. No nation can afford to take up arms in defence of
an assertion which is pronounced by that opinion to be erroneous. A
recent writer of established authority has well answered this objection:
It is sometimes said that there can be no law between nations,
because they acknowledge no common superior authority, no international executive capable of enforcing the precepts of international law.
This objection admits of various answers: First, it is a matter of fact
that states and nations recognize the existence and independence of
each other, and out of a recognized society of nations, as out of a society
of individuals, law must necessarily spring. The common rules of right
approved by nations as regulating their intercourse are of themselves,
as has been shown, such a law. Secondly, the contrary position confounds two distinct things, namely, the physical sanction which law
derives from being enforced by superior power, and the moral sanction
conferred on it by the fundamental principle of right; the error is
similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect. All moral obligations are equally
perfect, though the means of compelling their performance is, humanly
speaking, more or less perfect, as they more or less fall under the cognizance of human law. In like manner, international justice would
not be less deserving of that appellation if the sanctions of it were
wholly incapable of being enforced.
#
#
#
#
#
But irrespectively of any such means of enforcement the law must
remain. God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both may be
violated on earth, but to the national as to the individual conscience,
the language of a profound philosopher is applicable: " Had it strength
as it had right, had it power as it has manifest authority, it would absolutely govern the world."
#
#
#
#
*
Lastly, it may be observed on this head, that the history of the
world, and especially of modern times, has been but incuriously and
unprontably read by him who has not perceived the certain Nemesis
which overtakes the transgressors of international justice; for, to take
1 Cic. De Legibus, Lib. I, c. VI, § 6.
2 Just. I, 1. 3.
>J 6
ARGUMENT  OP  THE   UNITED  STATES.
but one instance, what an " Hiad of woes " did the precedent of the
first partition of Poland open to the kingdoms who participated in that
grievous infraction of international law! The Roman law nobly expresses a great moral truth in the maxim, " Jurisjurandi contempta
religio satis Deum habet ultorem." The commentary of a wise and
learned French jurist upon these words is remarkable and may not inaptly close this first part of the work: " Paroles (he says) qu'on peut
appliquer egalement a toute infraction des loix naturelles. La justice
de PAuteur de ces loix n'est pas moins armee contre ceux qui les trans-
gressent que contre les violateurs du serment, qui n'ajoute rien a l'obli-
gation de les observer, ni a la force de nos engagements, et qui ne sert
qu'a nous rappeler le souvenir de cette justice inexorable." (Philli-
raore's International Law, third edition, London, 1879, vol. I, section
LX.)1
That there is a measure of uncertainty concerning the precepts of the
law ofnature and, consequently, in international, law which is derived
from it, is indeed true. This uncertainty in a greater or less degree is
found in all the moral sciences. It is exhibited in municipal law
although not to so large an extent as ininternationallaw. Law is matter
of opinion; and this differs in different countries and in different ages,
and indeed between different minds in the same country and at the
same time. The loftiest precepts of natural justice taught by the most
elevated and refined intelligence of an age may not be acquiesced in or
appreciated by the majority of men. It is thus that the rules actually
enforced by municipal law often fall short of the highest standard of
natural justice. Erroneous decisions in municipal tribunals are of frequent occurrence. Such decisions, although erroneous, must necessarily
be accepted as declarative of the rule of justice.   They represent the
1 The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of
states are all parts of one consistent system of universal morality. Between the
most abstract and elementary maxims of moral philosophy and the most complicated
controversies of civil and public law there subsists a connection. The principle of
justice deeply rooted in the nature and interests of man pervades the whole system
and is discoverable in every part of it, even to the minutest ramification in a legal
formality or iu the construction of an article in a treaty.—(Sir James Macintosh,
Discourse on the Law of Nature-and Nations, sub fine.)
Mr. Justice Story says: " The true foundation on which the administration of international law must rest is that the rules which are to govern are those which arise
from mutual interest and utility, from a sense of the inconveniences which would
result from a contrary doctrine, and from a sort of moral necessity to do justice in
order that justice may be done to us in return."    (Conflict of Laws, ch. ii, sec. 35.)
And, sitting as a judge, he declared: " But I think it may be unequivocally affirmed
that 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 evidenced by their general practice and custom, it
may be enforced by a court of justice wherever it arises in judgment." (La Jeune
Eugdnie, 2 Mason's Reports, p. 449.)
mm WHAT  LAW  IS  TO   GOVERN   THE  DECISION?
n
national standard of justice accepted and adopted in states where they
are pronounced. So far as they are wrong they will ultimately be corrected as nearer approaches are made to the truth. So also in international law, the actual practice of nations does not always conform to
the elevated precepts of the law of nature. In such cases, however, the
actual practice must be accepted as the rule. It is this which exhibits
what may be called the international standard of justice; that is to say,
that standard upon which the nations of the world are agreed. As
municipal law embraces so much of natural justice, or the law of nature,
as the municipal society recognizes and enforces upon its members, so,
on the other hand, international law embraces so much of the same law
of nature as the society of nations recognizes and enforces upon its
members in their relations with each other. The Supreme Court of the
United States, speaking through its greatest Chief Justice, was obliged
to declare in a celebrated case that slavery, though contrary to the law
of nature, was not contrary to the law of nations; and an English judge,
no less illustrious, was obliged to make a like declaration.1 Perhaps
the same question would in the present more humane time be otherwise
determined.
But, although the actual practice and usages of nations are the best
evidence of what is agreed upon as the law of nations, it is not the only
evidence. These prove what nations have in fact^greed to as binding
law. But, in the absence of evidence to the contrary, nations are to
be presumed to agree upon what natural and universal justice dictates.
It is upon the basis of this presumption that municipal law is from time
to time developed and enlarged by the decisions of judicial tribunals
and jurists which make up the unwritten municipal jurisprudence.
Sovereign states are presumed to have sanctioned as law the general
principles of justice, and this constitutes the authority of municipal
tribunals to declare the law in cases where legislation is silent. They
are not to conclude that no law exists in any particular case because it
has not been provided for in positive legislation. So also in international law, if a case arises for which the practice and usages of nations
have furnished no rule, an international tribunal like the present is not
to infer that no rule exists. The consent of nations is to be presumed
in favor of the dictates of natural justice, and that source never fails
to supply a rule.
If the foregoing observations are well founded, the law by which this
irThe Antelope 10, Wheaton's Reports, p. 120; The Louis, 2 Dods, 238.
\m
II
If 8
ARGUMENT OF THE UNITED STATES.
Tribunal is to be guided is the law of nations; and the sources to which
we are to look for that law upon any question which may arise are these:
First. The actual practice and usages of nations. These are to be
learned from history in the modes in which their relations and intercourse with one another are conducted; in the acts commonly done by
them without objection from other nations; in the treaties which they
make with each other, although these are to be viewed with circumspection as being based often upon temporary and shifting considerations, and sometimes exacted by the more powerful from the weaker
states; and in their diplomatic correspondence with each other, in which
supposed principles of the law of nations are invoked and acceded to.
Second. The judgments of the courts which profess to declare and
administer the law of nations, such as prize courts and, in some instances, courts of admiralty, furnish another means of instruction.
Third. Where the above mentioned sources fail to furnish any rule
resort is to be had to the great source from which all law flows, the
dictates of right reason, natural justice; in other words, the law of
nature.
Fourth. And in ascertaining what the law of nature is upon any
particular question, the municipal law of States, so far as it speaks with
a concurring voice, is a prime fountain of knowledge. This is for the
reason that that law involves the law of nature in nearly every conceivable way in which it speaks, and has been so assiduously cultivated
by the study of ages that few questions concerning right and justice
among men or nations can be found for which it does not furnish a
solution.
Fifth. And, finally, in all cases, the concurring authority of jurists of
established reputation who have made the law of nature and nations
a study is entitled to respect.
Mr. Chief Justice Marshall has expressed from the bench of the
Supreme Court of the United States what we conceive to be the true
rule.   He says:
The law of nations is the great source from which we derive those
rules respecting belligerent and neutral rights which are recognized
by all civilized and commercial states throughout Europe and America.
This law is in part unwritten, and in part conventional. To ascertain
that which is unwritten we recur to the great principles of reason and
justice; but as these principles will be differently understood by different nations under different circumstances, we consider them as
being, in some degree, rendered fixed and stable by a series of judicial
decisions. The decisions of the courts of every country, so far as they
are founded upon a law common to every country, will be received
a^v
flkffi
mm WHAT LAW IS  TO  GOVERN THE  DKCISION$ 9
not as authority, but with respect. The decisions of the courts of
every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule
which is to prevail in this.1
James C. Carter.
1 Sixty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 197.
The views stated in the text concerning the foundation of the law of nations
and the sources from which it is to be gathered, are, it is believed, supported by
the concurrent voices of writers of established authority. Differences will be found
in the modes of statement; but there seems to be no substantial disagreement. A collection of extracts from many writers of different nations will be found in the Appendix immediately following.
y 10
ARGUMENT OF  THE  UNITED  STATES.
APPENDIX TO PART FIRST (MR. CARTER'S ARGUMENT).
CITATIONS FROM WRITERS UPON THE LAW OF NATURE AND
NATIONS, SHOWING THE FOUNDATION OF INTERNATIONAL
LAW, ITS RELATIONS TO THE LAW OF NATURE, AND THE
SOURCES FROM WHICH THE KNOWLEDGE OF IT IS TO BE
DERIVED.
[POMEROY. Lectures on International Law, ed., 1886., ch. i, sees. 29, 30, 31, 33,
pages 23-26.]
Sec. 29. (2) A large number of rules which govern the mutual relations of states in their corporate capacity are properly called international law, on account of the objects which they subserve and the rights
and duties they create. They are also properly law, because they have
been established by particular states as a part of their own municipal
systems, and are enforced by their judiciary and executive in the same
manner as other portions of the local codes. They are in fact principles
of the law of nature or morality put in the form of human commands,
and clothed with a human sanction.
(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 mutual intercourse, and to which they conform their mutual relations. 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 Chiistendom, by a conviction that they are right
in themselves, or at least expedient, or by a fear of provoking hostilities.
This moral sanction is so strong and is so constantly increasing in its
power and effect, that we may with propriety say these rules create
rights and corresponding duties which belong to and devolve upon independent states in their corporate political capacities.
Sec. 30. We thus reach the conclusion that a large portion of international law is rather a branch of ethics than of positive human jurisprudence. This fact, however, affords no ground for the jurist or the
student 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 deductions of right reason; having no positive human sanction they appeal to a higher sanction than
do the precepts of municipal 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 human legislation.
Sec. 31. The preceding analysis of the nature and characteristics of
international law enables us to answer the general question, What are
its sources? If we confine our attention to that portion which is in
every sense of the term strictly international, and is therefore, as we
have seen, morality rather than law, these sources are plainly seen to
be: (1) The Divine law; (2) Enliglitered reas >n acting upon the abstract principles of ethics; and (3) The co iseut of nations in adopting
the particular rules thus drawn from the generalities of the moral law APPENDIX TO  PART  FIRST.
11
by the aid of right reason. It is only with this portion of international
law that we need now concern ourselves. That other portion which I have
already described as international only in its objects, and strictly
national and municipal in its creation and sanctions, springs from the
same sources whence all of the internal law oi a particular State arises—
from legislatures and the decisions ot courts. We will then briefly consider these principal sources, or, if I may use the expression, fountains
from which flow the streams of the jus inter gentes.
Sec. 33. (2) Reason. But the precepts of the moral law, either as contained in the written word, or as felt in the consciousness of the human
race, are statements of broad, general principles; they are.the germs,
the fructifying powers; they must be developed, must be cast in a more
practical and dogmatic form to meet the countless demands of each individual, and of the societies we call nations. To this end we mu t
appeal to reason; and hence the second source which I have mentioned,
namely, enlightened reason acting upon the abstract principles of
morality. I can not now stop to illustrate this proposition; we shall
meet many pertinent examples in the course of our investigations. I
wish now, however, to dwell upon one fact of great importance—a fact
which will help you to avoid many difficulties, to reconcile many discrepancies, to solve many uncertaincies. This fact is, that an international law is mainly based upon the general principles of pure morality,
and as its particular rules are mainly drawn therefrom, or are intended
to be drawn therefrom, by reason, it is, as a science, the most piogres-
sive of any department of jurisprudence or legislation. The improvement of civilized nations in culture and refinement, the more complete
understanding of rights and duties, the growing appreciation of the
truth that what is right is also expedient, have told, and still do tell,
upon it with sudden and surprising effect.
The result is that doctrines which were universally received a generation since are as universally rejected now; that precedents which
were universally considered as binding a quarter of a century ago
would at the present be passed by as without force, as acts which
could not endure the light of more modern investigation. More particularly is this true in respect to the rules which define the rights of
belligerents and neutrals. The latest works of European jurists are,
as we shall see, conceived in a far different spirit from standard treatises of the former generation. It was the entire ignoring or forgetful-
ness of this evident and most benign fact by Mr. Senator Sumner,
in the celebrated and elaborate speech which he delivered a few years
since upon the international policy of England, that rendered the
speech utterly useless as an argument, exposed it to the criticism of
European jurists, and left it only a monument of unnecessary labor in
raking up old precedents from history, which no civilized nation of our
own day would quote or rely upon.
The Roman law, that wonderful result of reason working upon a basis
of abstract right, is largely appealed to in international discussions, as
containing rules which, at least by analogy, may serve to settle,international disputes. No one can be an accomplished diplomatist without
a familiar acquaintance with much of this immortal code.
[Phillimore.   International law, 1871, ch. m, pages 14-28.]
XIX. * * * What are in fact the fountains of international
jurisprudence?"   *   *   *
XX. Grotius enumerates these sources as being | ipsa natura, leges
divined, mores, et pacta?
y 12
Argument of the united states.
U
In 1753 the British Government made an answer to a memorial of the
Prussian Government which was termed by Montesquieu repcnse sam
replique, and which has been generally recognized as one of the ablest
expositions of international law ever embodied in a state paper. In
this memorable document I The Law of Nations" is said to be founded
upon justice, equity, convenience, and the reason of the thing and confirmed by long usage.
XXI. These two statements may be said to embrace the substance
of all that can be said on this subject.   *   *   *
XXII. Moral persons are governed partly by Divine law, * * *
which includes natural law—partly, by positive instituted human law.
*
#
States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly
by Divine and partly by positive law. Divine law is either (1) that
which is written by the finger of God on the heart of man, when it is
called natural law ; or (2) that which has been miraculously made
known to him.   *   *