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grounds only, one of which is that the United States so framed the treaty that it can be construed to mean that its own claims alone were referred to the Tribunal, and the other that Great Britain was an ally of the rebels in the late civil war. But nothing is clearer than the fact that Great Britain was not such an ally, except, perhaps, the fact that the treaty has, till now, always been construed to include the claims of individuals.
If either of these facts had not existed or had not been recognized by the Tribunal, we should have had no award to distribute. As they do exist and have been recognized, and the money has been awarded solely on account of the losses of individuals, by what process have the United States become entitled to the indemnity so awarded for those losses ? The only name for such process is confiscation, — confiscation, unequal, unconstitutional, arbitrary, and without excuse.
It seems to have been tacitly conceded that no foreign underwriter can have a claim to be subrogated to his assured in any of these cases. But surely his national character cannot be material so long as it is that of a neutral. And, if Great Britain should think it worth while, at some future day, to present such a claim held by one of her subjects as a claim upon the justice of our government, it would be matter of regret that we had not cheerfully and gladly conceded it beforehand. It is purely a mercantile question, to whom the claim belongs, and should be so treated in every aspect.
The question is sometimes asked whether the party who paid the premium should not be reimbursed out of the money paid on account of the particular vessel insured. But it would seem that that should rest, as it would if no loss had occurred, with the insurer. And certainly, in any of the cases under consideration, the trouble, delay, expense, and anxiety which have fallen on the underwriter are but slightly compensated by the amount of his premium.
It has been urged by counsel on behalf of the merchants who have paid the war premiums, that, in the case of mutual insurance companies, the persons who would receive the proceeds of the claims would be a different class from those who paid the money. But the company is the legal trustee of the money, and it would in most cases be quite as safe, perhaps, to pay it to the trustee as to leave it to be distributed by busy members of Con
gress, who would probably themselves undertake most reluctantly the task of discovering the exact persons entitled to it.
It is sometimes said that although the rights of the insurers are clear enough as a matter of municipal law, yet that Congress is not bound by that law in regard to the money of citizens paid into the treasury, as this fund has been ; that a citizen has no rights as against the state, because there is no sanction for the right, that is to say, no power anywhere to enforce it. But to this there are two answers : (1) that the executive and legislative departments are not the state ; and (2) that the rights of the citizen are sanctioned by overmastering power, if the opinion of the people be once fairly directed upon any denial of them.
What is the municipal law ? Is it not, from the Constitution of the United States down to the last valid by-law of the smallest town, the law which binds us all, THE LAW OF THE LAND ? If the rights which are protected by this law are to be disregarded, what rights are safe? If Congress is not to respect the opinions of courts nor the statutes of states, where is it to find the rules which should guide its action? When our fathers framed their constitution, and expressed their purpose “to establish justice," did they use an unmeaning expression? Do not the people of the United States now know what the word JUSTICE means ?
. When Mr. Froude was lately made rector of the University of Glasgow, he said, in his inaugural address, that he had attended the ministrations of the Church of England for some forty years (the quotation is from memory), and while he had heard many sermons upon sanctification, justification by faith, and similar subjects, he had never heard one upon any point of common morality. It is to be feared that a similar remark might have extensive application on this side of the water. But the idea of justice is pretty generally understood, and understood alike, up to a certain point, by the people of all civilized countries. Where it is not, commerce must be nearly impossible beyond transactions of immediate barter.
In this country commerce thrives and grows. Men trust each other freely, and for the most part safely. The real aristocracy of the United States, which is at the same time the real democracy, is composed of the millions of honest men who, in field or workshop, on the decks of ships or in the counting-house or the study, are earning their own and their families' living by faithful industry. They know in general what honesty means, and they practise it. What would a country be where the majority of men were essentially dishonest? What is the condition of those countries where the ruler is habitually unjust to his subjects and disregardful of their property? The answer is found in modern Egypt; would it were found nowhere else!
Here we have not arrived at the point that we do not know our rights. We do know them, and generally agree what they are, and mean to maintain them for ourselves and our fellows. " Each for all and all for each " is the true motto of this republic. Its first clause has often been grandly asserted. It is time that the latter should be. The reciprocal duties of allegiance and protection are generally admitted. It is to be hoped that the duty of the state to its individual members will in future be held to be more and more distinct and complete. If Rob Roy could afford, for the black-mail paid him, to insure his customers full indemnity against hostile aggression and prompt payment besides, why should not a modern republican government do as much ? This has seemed to be the view of President Grant, and it is certainly to be hoped that some improvement may be made in protecting the rights of individuals, over the degree of security which satisfied the ideas of our half-barbarous ancestors. We go humbly back to Grotius to ascertain our rights to-day, and get much light, it is true; but perhaps we do not sufficiently consider that the rights of individuals have been growing vastly in importance in the two centuries and more since the Thirty Years' War. This government in particular was established for the benefit of individuals, “ by the people and for the people.”
In considering the question which was stated at the outset of this article, that of the degree of statesmanship which we are exhibiting in our disposition of the award given to us before all Christendom, and which Christendom is looking earnestly to see us divide, – our friends trusting that we shall regard simple faith as the highest skill, and our enemies hoping that we shall plunge into refinements of injustice, — the first thing that strikes us is the obvious absurdity of supposing that the form voluntarily adopted by an agent in dealing with a party whose interests are opposed to those of his principal is to settle the question of right between the agent and the principal ; the next is the singular want of ordinary tact displayed by the advocates of the Senate
bill. They propose to take large and disproportionate sums of money from living men and give it to an abstraction. If it were just to do so, it would require in a hero the exercise of all his resolution. But where it is not just, where is the statesmanship? Who cares for the money saved to the treasury? Not one man in ten millions will ever think of it, except to think that: there have been men who would risk the justice of their country and its reputation for intelligence and honesty for a sum of money that did no one any good. It would be better, as a matter of mere pecuniary economy, to throw the whole sum into the sea than to give out the impression that the legal rights of citizens of the United States are not safe in the hands of their own government. If our own people are not safe, where is the guaranty for our good faith with other nations and their citizens ? And what but a doubt of that faith makes it necessary to-day for the United States to pay more than England for money it has occasion to borrow. As a financial measure, it would probably be the wisest thing Congress could do to pay the fund at once to those who have all along thought (in common, it may be said, with every one else) that it belonged to them, and appropriate five millions or so from the treasury to be distributed “equitably.”
Let the sum so appropriated be placed at interest till Congress shall decide what, upon the general principles of equity, should be done with it, and in the mean time let the good faith of the United States cease to be a matter of debate.
Even the illegitimate statesmanship of the House is better than that of the Senate, but should meet with utter disallowance.
The able article referred to at the outset has been quoted as if it advocated the claims of the merchants who paid the war premiums against the underwriter. But this does not appear from a full examination of the article. While the writer contends that the claims of the merchant are just and should be paid, he does not by any means argue that the insurers should be taxed and their money taken to pay those claims. It may be stated with confidence, from the general tone of the article, that the writer would say, “ First pay the debts which the law recognizes as just, and then, if you think it wise, tax yourselves to pay those who come next.” It is not necessary to depreciate the validity of the merchants' claim on the country for the present purpose, it is enough to say that they have no claim on the funds of the insurers.
The merchants' claim on the country would be stronger than it is if the British government had been held responsible for the acts of all the cruisers. As it was the acts of all that caused the rates of insurance to rise, and that government is responsible for the acts of only a part of them, say three out of nine, is there not a strong element of “uncertainty in the chain of cause and effect by which the particular loss is linked to the delict that is the cause of action”? But, strong or weak, the merchants' elaim is not on the funds of the insured.
What is the reason why the insurer should lose his money when the assured gets his? What has he done to forfeit the protection of his government? It seems as if he had somehow done it.
“ Forfeiture of protection,” says Bentham, “is in short neither more nor less than the forfeiture of the use of the ministers of justice; that is, of such persons whose business it is to protect the several members of the community in the enjoyment of their respective rights.”i .
It is said he has been paid by his receipt of premium. But we have seen that he is just as fully entitled by his original contract to this right of subrogation as he is to the payment of his premium note. It is, if we call the premium the consideration moving originally from the assured to the insurer, a part of the premium. And the underwriter has not received his war premiums in this, a fair legal sense, till he has received the fruits of this subrogation in the cases in question.
It is then said he is rich, and he has not gone in person to the war. These reasons are alike strong or otherwise, and they are left to casuists who feel interested in discussing them.
The underwriter may or may not be rich. He may be rich to-day and poor to-morrow. An eminent merchant remarked not long since, that if he were a trustee he would as soon invest property of his ward in a corner grocery as in the stock of an insurance company. The field of commercial history is strewn with the wrecks of such companies. As they seldom or never dissolve while prosperous, it may be said that their form of natural death is bankruptcy. But while they exist, they are among the
i Bentham's Principles of Penal Law. Bentham's Works. Edit. Edinburgh, 1843. Vol. i. p. 474.