THE RULE OF DAMAGES.

Perhaps I ought to anticipate an objection from the other side, to the

effect that these national losses, whether from the destruction of our

commerce, the prolongation of the war, or the expense of the blockade,

are indirect and remote, so as not to be a just ground of claim. This

is expressed at the Common Law by the rule that “damages must be for

the natural and proximate consequence of an act.”[86] To this excuse

the answer is explicit. The damages suffered by the United States

are twofold, individual and national, being in each case direct and

proximate, although in the one case individuals suffered, and in the

other case the nation. It is easy to see that there may be occasions,

where, overtopping all individual damages, are damages suffered by the

nation, so that reparation to individuals would be insufficient. Nor

can the claim of the nation be questioned simply because it is large,

or because the evidence with regard to it is different from that in

the case of an individual. In each case the damage must be proved by

the best possible evidence, and this is all that law or reason can

require. In the case of the nation the evidence is historic; and this

is enough. Impartial history will record the national losses from

British intervention, and it is only reasonable that the evidence of

these losses should not be excluded from judgment. Because the case is

without precedent, because no nation ever before received such injury

from a friendly power, this can be no reason why the question should

not be considered on the evidence.

Even the rule of the Common Law furnishes no impediment; for our

damages are the natural consequence of what was done. But the rule

of the Roman Law, which is the rule of International Law, is broader

than that of the Common Law. The measure of damages, according to

the Digest, is, “Whatever may have been lost or might have been

gained,”--_Quantum mihi abest, quantumque lucrari potui_;[87] and this

same rule seems to prevail in the French Law, borrowed from the Roman

Law.[88] This rule opens the door to ample reparation for all damages,

whether individual or national.

There is another rule of the Common Law, in harmony with strict

justice, which is applicable in the case. I find it in the law

relating to _Nuisances_, which provides that there may be two distinct

proceedings,--first, in behalf of individuals, and, secondly, in

behalf of the community. Obviously, reparation to individuals does

not supersede reparation to the community. The proceeding in the one

case is by action at law, and in the other by indictment. The reason

assigned by Blackstone for the latter is, “Because, the damage being

common to all the king’s subjects, no one can assign his particular

proportion of it.”[89] But this is the very case with regard to damages

sustained by the nation.

A familiar authority furnishes an additional illustration, which is

precisely in point:--

“No person, natural or corporate, can have an action for a

_public nuisance_, or punish it,--but only the king, in his

public capacity of supreme governor and _paterfamilias_ of the

kingdom. Yet this rule admits of one exception: where a private

person suffers some extraordinary damage beyond the rest of the

king’s subjects.”[90]

Applying this rule to the present case, the way is clear. Every British

pirate was _a public nuisance_, involving the British Government, which

must respond in damages, not only to the individuals who have suffered,

but also to the National Government, acting as _paterfamilias_ for the

common good of all the people.

Thus by an analogy of the Common Law in the case of a Public Nuisance,

also by the strict rule of the Roman Law, which enters so largely into

International Law, and even by the rule of the Common Law relating

to Damages, all losses, whether individual or national, are the just

subject of claim. It is not I who say this; it is the Law. The colossal

sum-total may be seen not only in the losses of individuals, but in

those national losses caused by the destruction of our commerce, the

prolongation of the war, and the expense of the blockade, all of which

may be charged directly to England:--

“illud ab uno

Corpore, et ex una pendebat origine bellum.”[91]

Three times is this liability fixed: first, by the concession of

ocean belligerency, opening to the Rebels ship-yards, foundries, and

manufactories, and giving to them a flag on the ocean; secondly, by

the organization of hostile expeditions, which, by admissions in

Parliament, were nothing less than piratical war on the United States

with England as the naval base; and, thirdly, by welcome, hospitality,

and supplies extended to these pirate ships in ports of the British

empire. Show either of these, and the liability of England is complete;

show the three, and this power is bound by a triple cord.

Charles Sumner: his complete works, volume 17 (of 20) · 第 27 / 69 题