tion which go to characterize the wrong complained of may be given in evidence; and so it has been held, both in England and in this country. Indeed, it may be said that in cases of tort, where no fixed and uniform rule of damages can be declared, the functions of the court at the trial of the cause are mainly to the reception and exclusion of evidence when offered either by way of aggravation or mitigation, and to a definition of the line between direct and consequential damage." 1

On this point there is unanimity of opinion among jurists, both of the common law, as in Great Britain and the United States, and of the civil law, as in the countries of the Roman law in Europe and America.2

The illustration of this rule, as among private persons, also applies to governments.

"In fact," says Mayne, "if any other rule existed, a man of large fortune might, by a certain outlay, purchase the right of being a public tormentor. He might copy the example of the young Roman noble mentioned by Gibbon, who used to run along the Forum, striking every one he met upon the cheek, while a slave followed with a purse, making a legal tender of the statutory shilling."3

The relation be

tween the injury

(c) Distinctions arise in regard to the relation of the loss or damage and the act of injury, by reason of which reparation is demanded, which require attention, especially in view of the question of whether direct or indirect damages, which fig ures in the present case.

and its cause.

This distinction is raised in various forms of expression, the party of whom damages are demanded seeking to diminish the amount by alleging that they are consequential or remote, or indirect or not immediate. All damages are claimed as a consequence of the act of wrong, and in that sense consequential, and therefore discussion necessarily ensues as to the more or of less remoteness, or indirectness, or immediateness of the consequence.

(d) But each of these conditions is, of itself, uncertain, vague, and sometimes incapable of precision, which has led to the Whether the nat endeavor to state the doctrine with more exactness, as ural result of the calling for the inquiry whether the damage complained of

wrong-doer's act.

is the natural and reasonable result of the wrong-doer's act; and it is settled that it may be deemed of that character if it can be shown to be such a consequence as, in the ordinary course of things, would follow from those acts.*

In truth, every cause has a series of effects; or, to speak more accurately, each effect becomes itself a cause; and so on, from cause to effect, in a longer or shorter series of alternations between cause and effect, according to the particular circumstances.

(e) If law-givers and jurists had been able to say that all damages for wrong should stop at the first effect of the cause, the definition of the rule would be less vague than it is in the common expression; but even then it would be necessary to reflect that the cause does not necessarily operate in a single line only, but frequently in several lines: it may operate in diverse directions, and produce many immediate and direct effects, as by radiation from the common centre of the causa causans, like a stone cast into water.

Of course, the solution of the problem becomes more and more difficult in proportion to the multiplicity of these different lines of action in which the primitive causes operate to produce effets, which are them

1

Sedgwick on the Measure of Damages, p. 528.

Sourdat, Traité de la Responsabilité, tom. i, p. 97; Sedgwick on Damages, ch. xviii. Mayne on Damages, p. 14.

4 Ibid., p. 15.

selves new causes, and all of them the natural, not to say necessary, consequences of the one definite act of wrong.

(f) As a given event may be, and often is, produced by a plurality of causes working together, so may a wrong be the effect of the action of two or more persons. In such case, the injured party has right of redress against all and each of the wrong-doers, although neither of them may be morally accountable for all the injury, and some one of them may have contributed to the injury in a comparatively small degree. But it is no defense for any of the wrong-doers to say, "I did but co-operate with others, and that in a comparatively small degree, to inflict the injuries."

Whether the effect complained of be or not directly connected with the cause, whether it be proximate or remote, whether the reputed injury be or not the natural and logical consequence of the alleged act of wrong, all these are in part questions of fact, which cannot be reduced to absolute precision, but of which the competent tribunal must judge. Thus, in the example so much discussed by writers on the civil law. suppose that the buildings, cattle, and horses of a cultivator are destroyed by the malicious or culpable negligence of another, so as to establish the right of indemnity against the author of the conflagration. how far shall the demand of damages extend?

Reparation must at least comprehend all which it costs to rebuild the farm-buildings and to procure the same number and quality of cattle and horses, and the personal inconvenience and derangement caused by the conflagration.

But the destruction of the buildings and cattle has interrupted cultivation and deprived the proprietor of his expected crop. Shall this. too, be included in the indemnity?

And the interruption of culture and the losses incidental thereto embarrass the proprietor, so that, in the course of the expenditure to which he is subjected in the purchase of materials of construction and cattle and horses, he becomes indebted; the failure of his crop deprives him of the expected means of payment; his creditors come upon him and seize and sell whatever he has, and thus he becomes ruined and reduced to absolute destitution.

All these disasters are the manifest consequence and effect of the acts of the incendiary. Is the incendiary responsible for them all? Or is he only responsible for the value of the things consumed? Are the subsequent losses, which are confessedly the natural consequences of the act of wrong, so remote or indirect as to relieve the incendiary of responsility therefor?

The law does not require that the damage recoverable shall be the necessary effect of the cause,-that is, an effect impossible to prevent; it does not require that the damage recoverable shall be the first effect of the cause, but only that the damage shall have efficient cause in the act of wrong.

And the party injured is not to be deprived of redress, if he failed to employ extraordinary means to arrest the progress of his losses and diminish their amount, provided he took the ordinary steps of prudence to that end.1

All these, we repeat, are considerations of fact, which the competent tribunal judges according to the circumstances and which do not admit of absolute legal conclusions of law.

(h) Damages, reparation, indemnity, all these are terms to describe

1 Sourdat, De la Responsabilité, tom. i, p. 96.

Damages should be an indemnity.

the same thing. Indemnity includes both lucrum cessans and damnum emergens. It includes also moral as well as material damage. And it involves injury to persons as well as things. But, in all cases, the question of the amount of damage and its equivalent in pecuniary reparation becomes one of fact for the Whether so or not consideration and the equitable determination of the com- a question of lact petent tribunal, as illustrated by the numerous cases, especially at common law, in which revision of sentence is called for on account of erroneous verdicts of damage.

2. We proceed to apply these considerations to the several heads of injury to the United States growing out of the acts of the

Application of

Confederate cruisers sub lite, and the consequent damages principles. due by Great Britain, discussing these points in the order in which they appear in the American Case.

(a) The United States claim indemnity for actual property of the Government in vessels destroyed, and for immediate per

As to personal in

sonal injuries to the officers and crews, caused by the Con- jaries, federate cruisers, the responsibility for whose acts we have in previous discussion attached to Great Britain.

In our enumeration of the particular facts, we have considered the case of each cruiser in respect of which we claim; we have proceeded to connect each of those cruisers with the British Government, so as, in our opinion, to establish its failure to fulfill the Rules of the Treaty in regard to the several cruisers; and we have treated fully the question of diligence as to each of these cruisers, as required by the Treaty Rules.

(b) The property destroyed consisted, first, of vessels, with their apparel, equipment, and armament, belonging to the Gov- As to property of ernment of the United States.

the United States

destroyed.

Statements in detail of the losses of this class, officially certified. either by the Secretary of the Treasury or the Secretary of the Navy, according as the vessels appertained to one or the other branch of the public service, appear in the appendix to the American Case.

There is no question here of indirect or direct damages, notwithstanding some vague suggestions to that effect in the British Counter Case. If a ship destroyed at sea is not a case of direct loss, then there is no sense in language and no reason in law.

What amount of damage is due in such a case? Surely the value of the thing destroyed is the minimum of such amount, even throwing out of question the element of wrong and looking at it as one of simple negligence.

How shall the value of the thing destroyed be ascertained? We present official certificates of the value, and we confidently submit, as between governments, that such official statements are to be received as fact. The British Counter Case undertakes to contradict such official certificates by means of opinions of the British Admiralty. We reject all such opinions. We refuse to recognize them as available in any sense to detract from the authentic proof contained in the authoritative documents offered by the American Government.

As to property de inflicted upon citi

stroyed and injuries

(c) The United States claim indemnity in like manner for vessels and other actual property of private citizens of the United States destroyed, and for immediate personal injuries to the officers and crews, caused by Confederate cruisers, the responsibility of whose acts we have, as we think, already attached to the British Government.

1 Sourdat, De la Responsabilité, tom. i, p. 224.

ns of the United

States.

The nature of these reclamations is explained in the American Case and in the appendix thereto, especially in the seventh volume, and in supplementary documents there will be found detailed statements, made on oath, with valuations and other particulars, for the information of the Tribunal.

The British Counter Case undertakes to control the facts thus set forth, and to do so by means of estimates, made by British subjects at the request of the British Government.

The Counsel of the United States respectfully submit that the claims of the United States in this behalf, vouched as they are, cannot be met by any such conjectural estimates as are put in by the British Government.

The United States, in those documents, have exhibited the value of the property captured or destroyed as the primary element and lowest measure of damage and of consequent reparation. Justice, we conceive, and the universal practice of nations, demand thus much, at least, of indemnity for wrong.

As to expenses in pursuit

cr users.

(d) The United States also claim payment of the expenses incurred by the Government in pursuit of the Confederate cruisers in of the question; of which expenses an account is given under the authority of the proper department of the United States. In this case, as in that of public vessels captured, we deny that the authentic accounts of the American Government can be controlled, as the British Counter Case undertakes to do, by conjectural estimates of officers of the British Government.

We conceive this damage to come within the most rigorous rules of direct damage.

Indeed, Mr. Gladstone himself, in specifying the contents of the two classes of damage, direct and indirect, as he regards them, places the cost of pursuit in the first category.1

We disregard the suggestion, offered in the Counter Case of the British Government, that the United States are in fault for not having sooner captured the Alabama and Florida, or having failed to capture other cruisers of the Confederates. The injured party, as we have already argued, is not held to take extraordinary measures to counteract the wrongful acts of the injuring party, but only ordinary measures. The evidence in the American Case and Counter Case shows that the United States did make great efforts and a diversion of forces for suppression of the Rebellion, at a large expense, for the pursuit of the Confederate cruisers in question; but if they had made none the omission could not be justly alleged in defense by Great Britain. This very objection on the part of the British Government confirms our claim of indemnity in this behalf. If it was the duty of the United States to pursue a Confederate cruiser, this duty being imposed upon us by the culpable conduct of the British Government, surely we have a perfect right to call on Great Britain to pay the expenses of such pursuit, in which we were only protecting ourselves against the effects of the delinquencies of the British Government.

The British Counter Case argues at some length against all claims on the part of the United States on account of the Confederate cruisers, even conceding that by failure to use due diligence Great Britain shall have incurred the culpability contemplated by the Treaty Rules. To much of this argument we have already replied, either in the statement of general propositions or in particular commentary. We proceed to make other appropriate comments thereon.

See Mr. Gladstone's speech, London Times, February 7, 1872.

In reading this denial in the British Counter Case of any responsibility on the part of Great Britain, notwithstanding there should be established legal responsibility, we could not but reflect on what has been admitted in this respect by most intelligent members of Parliament, including successive Cabinet Ministers.

Mr. Cobden's memorable remarks on this point, while the occurrences were passing, are quoted in the American Case. We requote only his statement as to actual losses by capture as follows:

"You have been carrying on hostilities from these shores against the people of the United States, and have been inflicting an amount of damage on that country greater than would be produced by many ordinary wars. It is estimated that the loss sustained by the capture and burning of American vessels has been about $15,000,000, or nearly £3,000,000 sterling. But that is a small part of the injury which has been inflicted on the American marine."

That was in 1864. Several years afterward, when there had been time for reflection, Lord Stanley said:

I have never concealed my opinion that the American claimants, or some of them at least, under the reference proposed by us, were very likely to make out their case and get their money. To us the money part of the affair is inappreciably small, especially as we have on our side counter claims, which, if only a small portion of them hold water,—and you can never tell beforehand how these matters will turn ont,-will reach to a considerable amount, and form a by no means unimportant set-off to the claims preferred against ns. But, I think, if matters were fairly adjusted, even if the decision went against us, we should not be disposed to grudge the payment. The expense would be quite worth incurring, if only in order to obtain an authoritative decision as to the position of neutrals in future wars.

Mr. Forster said, in the same debate:

They should further consider whether arbitration was the means of settling the matter. Tremendous injury had been inflicted on American citizens by means of the attacks upon their ships, and if the present misunderstanding was not settled upon a principle which would carry with it the feeling and moral sense of both countries, there was reason to fear that whenever we engaged in war we would suffer in the same way."

Earl Russell has himself said, in a passage herein before quoted from the preface to the edition of his speeches:

"Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama."

Will strict juridicial inquiry into the law and facts sustain the seopinions of Lord Stanley, Mr. Forster, and Lord Russell? We think it will. First. The Treaty itself seems to require an award of pecuniary reparation. It stipulates that—

In case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it thinks proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it, (Article VII.) It further stipulates that in case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States, on account of the liability arising from such failure, as to each vessel, according to the extent of such liability as decided by the Arbitrators. (Article X.)

All these expressions, we submit, imply an award of substantial damages and satisfaction of all losses growing out of the acts of the Confederate cruisers, provided the finding of the Tribunal, on the question of fulfillment or non-fulfillment of duty, be adverse to Great Britain. We dismiss, therefore, the question whether or not a conviction of guilty conduct is to go without any responsibility in damages, as argued by the British Counter Case, and we do not perceive any legal force in the arguments which the Counter Case adduces to this effect.

Hansard, third series, vol. clxxv, p. 496; App. to American Case, vol. v, p. 509. Hansard, vol. cxc, p. 1150; App. to American Case, vol. v, p. 708.