amount in which the partial loss of the insured is to be indemnified by the insurer (e). Secondly, as to the obligations which the Chinese Government incurred by its act of violence, and by the character of a wrong-doer with which it thereby clothed itself; and if the language and spirit of Roman Jurisprudence was in favour of the claim of the opium owners against the Chinese Government, considered as simple debtors, or as securities for debtors, infinitely more was it in their favour against that Government treated as wrong-doers. And, first, as to the Civil Law, which throughout that large chapter," De obligationibus quæ ex delicto nascuntur,' teems with analogies, and those of great force and directly bearing upon this subject. When a party, wrongfully deprived, was reinstated in his property by the well-known decree of the Prætor, the "restitutio in integrum "-the law said, "Sive quid amiserit "sive lucratus non sit, restitutio facienda est, etiamsi non ex "bonis quid amissum sit;" and in cases of theft, where the sentence restored with heavy damages the stolen property, it also provided for the value of the property where it could not be so restored-" æstimatione relata in id tempus quo fur"tum factum est" (f). So by the "Lex Aquilia," where there had been " dam“num injuria datum," in consequence of which the thing had diminished in value, the measure of restitution was "quanti ea res in anno plurimi fuit tantum domino dare "damnetur" (g); and again it is said, "placet ad id tempus "spectandum quo res unquam plurimi fuit” (h). So Pothier, in the chapter already cited, after stating the mitigating circumstances attaching to transactions of bona fides, observes (i): "Les principes que nous avons établis (e) Langhorn v. Allnutt, 4 Taunton's Reports, 511. (f) Dig. de Furtis, xlvii. t. ii. 51. Inst. iv. t. iii. De Lege Aquilia. (g) Dig. lib. ix. tit. ii. 23. (h) Dig. lib. xiii. tit. i. 8. 1. De Condictione Furtiva. 66 "jusqu'à présent n'ont pas lieu lorsque c'est le dol de mon "débiteur qui a donné lieu à mes dommages et intérêts. En "ce cas le débiteur est tenu indistinctement de tous les dommages et intérêts que j'ai soufferts, auxquels son dol a "donné lieu, non-seulement de ceux que j'ai soufferts par rapport à la chose qui a fait l'objet du contrat, propter rem " ipsam, mais de tous les dommages et intérêts que j'ai souf"ferts par rapport à mes autres biens, sans qu'il y ait lieu "de distinguer et de discuter en ce cas, si le débiteur doit "être censé s'y être soumis; car celui qui commet un dol "s'oblige, velit, nolit, à la réparation de tout le tort que ce "dol causera." Grotius (), in that chapter of his work which treats "De "damno injuria dato, et de obligationibus quæ ex delicto "nascuntur," fully adopts these maxims of the civil law. To the same effect are the instances cited by Sir John Davis (k), in a very curious case, called "Le case de mixt "moneys." In that case the English Privy Council (1), assisted by the Judges, seem to have said, that if a man, upon marriage, receives 1,000l. as a portion with his wife, paid in silver money, and the marriage is dissolved causa precontractús, so that the portion is to be restored, it must be restored in equal good silver money, though the State shall have depreciated the currency in the meantime (m); so if a man recover 1007. damages, and he levies that in good silver money, and that judgment is afterwards reversed, by which the party is put to restore back all he has received, the judgment creditor cannot liberate himself by merely restoring 1007. in the debased currency of the time, but he must give the very same currency that he had received. To the same, or even to a stronger effect, were the decisions of Lord Stowell (n) in restoring captured vessels which had (j) De J. B. et P. lib. ii. c. xvii. (k) Sir John Davis's Reports, p. 27. (1) 2 Knapp, Privy Council Rep. p. 20. (m) Conf. Burke, Thoughts on the French Revolution, v. 277. been condemned by illegally constituted Courts in the West Indies. The ship and cargo were directed to be restored in value; and on reference being made to the registrar and merchants, they took the invoice prices as the measure of the value, allowing upon it ten per cent. profit. Nor was this a solitary case; it was, as the Queen's advocate of that day said, "A question in which a great number of cases, and very "considerable amount of property, were involved" (o). Lastly, there was in favour of this position the elaborate judgment of Sir William Grant, in the case of Pilkington v. The Commissioners for Claims on France (p). The circumstances of that case were, that the Revolutionary Government had confiscated the debts owing from the subjects of France to those of Great Britain. By the Treaty of 1814 compensation was to be made to the latter. Between the decree of confiscation and the repeal of it, the assignats in which the debts were to be paid had been depreciated in value: it was disputed whether or no the depreciation should be charged to the French. Sir William Grant, after touching upon the curious question of depreciated currency as affecting the relations of debtor and creditor, observes: "I have said it is "unnecessary to consider whether the conclusion drawn by "Vinnius or the decision in Davis's Reports be the correct 66 one, for we think this has no analogy to the case of "creditor and debtor. There is a wrong act done by the "French Government; then they are to undo that wrong act, "and to put the party into the same situation as if they never "had done it. It is assumed to be a wrong act, not only "in the Treaty, but in the repealing decree. They justify it only with reference to that which, as to this country, has a "false foundation-namely, on the ground of what other "Governments had done towards them, they having confis"cated the property of French subjects; therefore they say, "we thought ourselves justified at the time in retaliating 66 (0) The Lucy, 3 C. Rob. Adm. Rep. p. 210. 66 upon the subjects of this country. That being destitute of "foundation as to this country, the Republic themselves, in "effect, confess that no such decree ought to have been "made, as it affected the subjects of this country; therefore "it is not merely the case of a debtor paying a debt at the "day it falls due, but it is the case of a wrong-doer who "must undo, and completely undo, the wrongful act he has "done; and if he has recived the assignats at the value of "50d., he does not make compensation by returning an assignat which is only worth 20d.—he must make up the difference between the value of the assignat at different periods ****. If the act is to be undone, it must be completely undone, and the party is to be restored to the "situation in which he was at the time the act to be undone "took place." 66 66 66 If in the case of the British merchants and the Chinese Government, the Treaty had not specified the sum of six millions for the compensation, but merely promised in general terms to restore the value of the opium seized-then the principles of International Law which govern the construction of Treaties (7) would have entitled the original possessors of the opium to demand the most favourable interpretation which could be put upon the term "value" (r). The conclusion then to which we are led with respect to the case which has been discussed, from the application of the principles of International Law, derived from all the sources which have been enumerated, is this: That the British Government would have been justified by the Law of Nations in demanding the cost price of the opium from the Chinese Government, even if the depreciation in value of that article at the time of the conclusion of the Treaty had been the result of the usual fluctuations of commerce. It is obvious that this conclusion applied with increased force to a case where the diminished value was one of the consequences of the wrongful acts of that Government itself. (q) Grotius, lib. ii. c. xiv. (r) Vattel, t. ii. p. 33. CHAPTER IX. OBJECTION THAT THERE IS NO LAW BECAUSE NO SUPERIOR. LX. 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 laws (a). In like manner, International (a) Kant, Rechtslehre, s. 54 seq.- Warnkönig says, with much force and truth, "Nonne ex mutua inter sese invicem agnitione inter eas quædam constituitur societas, et probantur communes justi regulæ quæ verum jus efficiunt? miscet vir summus (i. e. Kant) juris sanctionem cum justi notione, eaque in re parum sibi constans esse videtur."-Doctrina Juris Philosophica, s. 147. Brown's Philosophy of the Human Mind, vol. iv. pp. 396-7-8. |