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therefore, we shall not be influenced by false delicacy in discussing the question. Any one on the sea may regard these men as pirates, and treat them as the Rajah Brooke has treated the pirates of Borneo." Lord Aberdeen in the House of Lords, and Mr. Disraeli in the Commons, assented entirely to these views. The Journal des Debats of June 14, in commenting upon the transaction, said: "All political parties, all sections of the union, regard the authors of the project as buccaneers and pirates, and they were thus properly described in the British Parliament." 1 This Lopez expedition was entirely identical in the legal principles involved, and very analogous in its physical features and overt acts with the Virginius and its operations. The Creole was not properly an armed vessel, that is, fitted out with naval armament, although like her successor and imitator she carried men, arms, and warlike material, nor was she designed to operate upon the seas, except in the simple function of transporting. No violence was committed nor intended to be committed upon the ocean. The sole object of Lopez was to effect a landing, and to commence acts of hostility on the soil; to incite a rebellion, and to obtain possession of the island. In fact, he penetrated the country a few miles from the coast. This case is a complete answer to the position taken by the Law Magazine, that piracy is impossible unless the violence is done upon the seas. Lord Brougham, in the emphatic language which we have quoted, was not using terms at random. He knew the meaning of his words, and the effect which would be given to them. His authority, and that of the other statesmen and jurists whom we have quoted, far outweighs the opinion of the writer in the Law Magazine, and shows that the technical definition anciently given by the English judges as part of the common law is not accepted as a correct statement of the international law.
It follows as a necessary corollary from these doctrines that an armed ship of insurgents who have never been recognized as belligerents, although committing and intending to commit hostile acts against the parent state alone, is a pirate jure gentium, and is liable to capture by the men-of-war of every nation. It is true the animus furandi may be wanting, and the violence is not directed against all mankind, but as its object is to use violence, and as there is no sovereign behind it, represented by it, and 1 Phases et Causcs Celebrea, vol. ii. pp. 442-458.
conferring at least a quasi authority upon it, such vessel falls completely within the definition of piracy which has been established. Doubtless at the present day other nations would not be inclined to interfere, and would leave the task of capture and punishment to the parent state which alone is directly injured; but this tacit surrender of poAver does not change the nature of the act nor affect the status of the offending ship. Whatever else may be said of this position, it is certainly the American doctrine, and the government of the United States is estopped from denying its correctness. During the first and second years of the rebellion the burden of Mr. Secretary Seward's dispatches to Great Britain, France, the Netherlands, Belgium, and other maritime powers, was the assertion, repeated in every form and sustained by every possible argument, that the Confederate cruisers were pirates, and should be treated as such by the European governments. Congress adopted the theory of the Secretary, while the newspaper press advocated it with unceasing earnestness. When in answer to his demands the recognition of belligerency was relied upon as removing the piratical status and as conferring a semi-national character upon the Confederate flag and commissions, Mr. Seward protested that this recognition was an act of unfriendliness and a serious violation of international obligations.1 In the House of Lords debates several of the ablest peers and law lords conceded that the Secretary's position would have been correct if the Confederates had not been recognized as belligerents, and admitted that in such case a British subject fitting out a privateer for the purpose of assisting the Southern States would be guilty of piracy.
These principles have an obvious and direct application to the Virginius. Owned, controlled, and used for warlike purposes against their parent state by insurgents who have never been recognized as belligerents by their own sovereign, nor by any other power, she resembled in every respect the Confederate cruisers denounced by Mr. Seward as pirates, unless the absence of a naval armament and of an intent to commit hostile acts of direct violence upon the sea makes an essential difference. It must be conceded at once that there is a difference in the external physical fact, but we submit there is none in the underlying legal principle. All the reasons of the rule, all the evils to be remedied,
l For a full discussion of this subject, and statement of the position taken by the United States, see Mr. Dana's ed. of Wheaton, p. 196, note (84).
exist as in the case of a vessel armed as a man-of-war. She was employed solely in the active prosecution of an insurrection, in transporting arms, material, and men, in landing hostile expeditions upon the coast of Cuba. She resembled in every respect the Creole, which was her prototype, and which was declared by the highest authority to have been piratical.
If, however, the Virginius has not been brought within the very letter of the definition, if the absence of a naval armament adapted to hostilities upon the water saves her from being regarded as a technical pirate, the analogies to this criminal condition are so perfect, and the principle which underlies the rule so completely covers her case, that the rule itself should be extended so as to impress upon her all the risks and liabilities of the piratical character. The international law is not a stationary science. It has been built up, like the common law, by the development of germinal doctrines, by the application of broad maxims of justice to new and additional facts which arise in the changes and movements of society. We have witnessed in the most recent times a striking example of such an extension in the enlargement of the obligations of neutrals and the rights of belligerents by the treaty of Washington and by the decision of the tribunal of arbitration at Geneva. Another new case now presents itself, which, it may be said, is not exactly provided for by the very letter of the rule as hitherto applied in actual practice, but which, without any straining, comes within the reason, the equity, and the policy of the rule. As there are no international courts to exercise the legislative function, the governments themselves, through their diplomatic interchange of opinion and by their official concessions, must add to the already accepted body of the public code the new provision which shall supply the want and meet the emergency. In this manner the international law has grown into a scientific system by the development of a few germinant principles. As the United States has, in the glorious days of its enlightened statesmanship, led the nations in asserting and upholding those grand doctrines which declare and preserve the freedom of the seas to all lawful commerce, so it is now its high duty and opportunity to protect this legitimate freedom from the license of those persons who would use the highway of the world for their unlawful and hostile enterprises by means of a fraudulent assumption of the commercial character.
TORTS UNDER THE FRENCH LAW.
Traite General de la Responsabilite ou de VAction en DommagesinterSts en dehors des Contracts. Par M. A. Soubdat, Docteur en Droit, Conseiller a la Cour d'Appel d'Amiens. Paris. 1872.
This is a treatise upon the subject of torts as it exists in the French law. By the English common-law procedure act1 a tort is described as "a wrong independent of contract." This book, as its title imports, treats of wrongs independent of contract. It may not be uninteresting to see how this very important subject is dealt with in another system of jurisprudence.
The principle of civil responsibility for wrongs is expressed, in a general manner, in art. 1382 of the Code Napoleon: "Every act whatever of a man which causes damage to another obliges him by whose fault it has happened to repair it." This book is a development of that article. The author says of it, there is no principle of law which is more prolific of consequences, of more frequent occurrence in practice, more simple in appearance, and more difficult of application than this.
By the English law, an insane person, and probably a minor below the age of discernment of right and wrong, though they are not criminally liable, are at least under many circumstances civilly responsible for the damage they may do, as a person of sound mind or an adult would be under the same circumstances.2 But by the French law, as the principle of responsibility, civil as well as criminal, implies a fault imputable to the doer of the harmful act, the insane and minors under the age of discernment are freed from all responsibility, civil as well as criminal. In this the author says there is no injustice. Although the one who causes the damage is rich, he is not obliged to indemnify the sufferer who may be poor; for it is a case of accident, as much as if a tile should fall from a roof and kill a person beneath.
Upon the subject of infancy a distinction is made, which has no place in the English law. If a minor is below the age of sixteen,
1 15 & 16 Vict. c. 76.
J Barnard v. Haggis, 32 Law J. C. P. 189; Bristow v. Eastman, 1 Esp. 172.
but capable of acting with discernment, yet as the liability in every case depends not only upon the amount of damage done, but also upon the blame attachable to the person doing the damage, and as an act done by an infant is less blamable than one done by an adult, the fact of his nonage is allowed its influence in determining the amount of the judgment. The fact that oneis under guardianship as a spendthrift does not necessarily discharge him from liability. Although such a spendthrift has not the entirety of his faculties, the faculty which his status shows to be wanting is the faculty of caring for his pecuniary interests. His moral sense, his conscience, and his will, are not necessarily impaired. His accountability or non-accountability is therefore a question of fact. Drunkenness, voluntarily produced, is, however, no excuse for a wrong.
A third person, by paying for the damage done, can discharge the liability of the wrong-doer, even against the will of the party wronged. The legal restraint under which the press labors, and the temptation which exists to break through that restraint, is shown in this connection. In matters of libel by the press it is a violation of law to publicly advertise for subscriptions to pay the costs, fines, and damages which have been incurred by a libellous publication; but a subscription made for such a purpose is not in itself illegal.
There is much to be said against and for a method of trial which is allowed in criminal cases. When one is injured by an act which is criminally punishable, he can unite his private cause of action with the proceedings of the public prosecution. Thus the whole matter, with its criminal and its civil side, may be determined at once, and punishment for the crime and reparation for the damage caused may be awarded in the same proceedings.
While the rules of liability appear to be in general the same, or, when different, even more strict in favor of the defendant than the rules of the English law, still a plaintiff is allowed to ground his action upon an injury which is never directly, and scarcely ever incidentally, protected by our law. To maintain an action the interest must be direct, and the right must be an actual right. But the interest need not be a material or a pecuniary one; a moral interest will suffice. Damages can be recovered by a son for the death of his father, and by a woman for the death of her husband or child. Sometimes a material interest may be joined
vOL. Tiil. 83