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.
CONCLUSION.
Mr. President, in concluding these remarks, I desire to say that I am no volunteer. For several years I have carefully avoided saying anything on this most irritating question, being anxious that negotiations should be left undisturbed to secure a settlement which could be accepted by a deeply injured nation. The submission of the pending treaty to the judgment of the Senate left me no alternative. It became my duty to consider it carefully in committee, and to review the whole subject. If I failed to find what we had a right to expect, and if the just claims of our country assumed unexpected proportions, it was not because I would bear hard on England, but because I wish most sincerely to remove all possibility of strife between our two countries; and it is evident that this can be done only by first ascertaining the nature and extent of difference. In this spirit I have spoken to-day. If the case against England is strong, and if our claims are unprecedented in magnitude, it is only because the conduct of this power at a trying period was most unfriendly, and the injurious consequences of this conduct were on a scale corresponding to the theatre of action. Life and property were both swallowed up, leaving behind a deep-seated sense of enormous wrong, as yet unatoned and even unacknowledged, which is one of the chief factors in the problem now presented to the statesmen of both countries. The attempt to close this great international debate without a complete settlement is little short of puerile.