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.