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state of society, the habits of business, the general usages of life, and the changes, as well as the institutions, peculiar to the age. So that, although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence in the sense of the law which men of common prudence generally exercise about their own atfairs in the age and country in which they live. It will thence follow, that in different times and in ditferent countries, the standard is necessarily variable with respect to the facts, althongh it may be uniform ith respect to the principle; so that it may happen that the sanie acts which, in one country, or in one age, may be deemed negligent acts, may, at another time, or in another country, be justly deemed an exercise of ordinary diligence.
What is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence.!
The same standard is, in practice, applied in the English law. The older authorities, indeed, speak of three degrees of negligence, and of gross” negligence as being necessary in some cases to found liability ; but the tendency of modern decisions has been to apply in all cases the sound, practical rule that in determining the question of negligence, the true test is whether there has been, with reference to the particular subject matter, that reasonable degree of diligence and care which a man of ordinary prudence and capacity might be expected to exercise in the same circumstances. (See what is said by Tindal, L. C. J., in Vaughan vs. Menlow, (3 B. N. C., 475 ;) by Parke, B., in Wyld vs. Pickford, (8 M. and W., 461;) by Cresswell, J., in Austin vs. Manchester, Sheffield and Lincolnshire Railway, (10 C. B., 454;) and by Rolfe, B., in Wilson vs. Brett, (11 M. and W., 115.)
While, however, I thus seek in the writings of jurists, and the law of different nations, some standard for the measure of diligence, I readily concede that the application of that standard must depend on the circumstances of each individual case, and on the view which the judge may, in his couscience, form of how far the conduct of the individual complained of may or may not have been that which ordinary prudence and sense of duty would have prescribed. I entirely agree with what is said by the learnell editors of Zacharia's “ Droit civil français," on article 1137 of the French code :
L'article 1137 se résume en un conseil aux juges de n'avoir ni trop de rigueur ni trop d'indulgence, et de ne demander au débiteur qne les soins raisonnablement dûs à la chose qu'il est chargé de conserver ou de faire, soit à raison de sa nature, soit à raison des circonstances variables à l'infini qui modifient son obligation pour la rendre on plus large ou plus étroite.?
What is here said by the learned editors of Zachariæ appears to me to afford the true criterion. It is for the judge to determine, according to the best of his judgment, with reference to the facts of the particular case, and with reference to the thing to be done or left undone, whether what has been done, or left undone, as the case may be, has been what could reasonably and justly have been expected from a person of ordinary capacity and prudence in the affairs of life. More than this is not to be expected. I have cited these authorities because, in the absence of any reference
to the question of diligence among writers on international
law, it seems to me that the principle that prevails as to men's conduct in the affairs of life may by analogy be well applied to the discharge of its duties by a government. Applying this standard, one nation has a right to expect from another, in the fulfillment of its
Same prine ple applied to government.
Story on Bailments, 14. 2 Zachariæ, “Droit civil français,” edited by MM. Massé and Vergé, vol. ii', p.
Heads of diligence.
international obligations, the amount of diligence which may reasonably be expected from a well-regulated, wise, and conscientious government, according to its institutions, and its ordinary mode of conducting its affairs; but it has no right to expect more. The assertion of the obligation of a neutral government, as stated in the American case, that “ the diligence is to be proportioned,” not only to the magnitude of the subject," but also to the dignity and strength of the power which is to execute it," as though there could be one measure of diligence for a powerful state, and another for a weak one—a diligence " which shall prevent its soil from being violated”—which “shall deter designing men," &c.—thus making the neutral government answerable for the event-and " which prompts to the most energetic measures”-appears to me much too extensive, and altogether inadmissible.
The diligence required of a gorernment to prevent infractions of neutrality may relate (1) to the state of its municipal law ; (2) to the means possessed by it to prevent such infractions; (3) to the diligence to be used in the application of such means to the end desired.
As to the law, the subject may be divided into the prohibitive law, or, as it is termed in the American case, the punitive law, and the preventive law—that is, the law whereby the government is armed with the power and means of prevention.
As regards the prohibitive or punitive law, no difficulty can arise. It is plain that, to satisfy the exigency of due diligence, and to escape lialility, a neutral government must take care, not only that its municipal law shall prohibit acts contravening neutrality, but that the law shall he upheld by the sanction of adequate punishment—that is to say, of such as may reasonably be expected to deter persons from offending against it.
As regards the preventive law, doubtless a government should be armed by law with power to prevent au infraction of the law, when it knows, or has reasonable ground to believe, that such infraction is about to take place.
But when we come to the question of the means which by law should be placed at the disposal of the government, difficulties of a very for midable character immediately present themselves.
The more despotic and unlimited the power of a government, the more efficacious will be the means at its command for preventing acts which it is desired to prevent.
Is this a reason, in a country where absolute and unlimited power is unknown, where every power is exercised in subordination to the law, and where, for any interference by the government with the rights of person or property, redress may immediately be sought, for investing the executive with an absolute and irresponsible power, at variance with the whole tenor and spirit of the national institutions, in order to protect a belligerent from the possibility of injury from a violation of neutrality!
Again, a nation has a system of procedure which is in harmony with its institutions, and with which it is satisfied. According to that system, persons against whom the law is to be put in force cannot be subjected to be interrogated in order to establish their criminality. Proof must first be produced, from which, while it remains unanswered, a presumption of guilt arises, before they can be called upon for a defense. Be. cause a different system might be more efficacious in enabling the government to establish a case for confiscating a suspected vessel, for the
Means at disposal of Governcot
protection of a belligerent, is the legislature called upon to change the law because other nations become involved in war?
Again, the government of a country has been carried on for years according to an established system of official routine. This system may be somewhat complicated, and may render the action of the executive less speedy than it might otherwise be. But it is safe, and has been found to work sufficiently well in carrying on the affairs of the nation at home and abroad. Because a more rapid and a more direct action on the point to be reached might be obtained by a simplification of the official machinery, is a government to be held guilty of negligence, because, not foreseeing what was about to happen, it had not altered its ministerial arrangements accordingly?
A government, in all matters involving legal consideration, is in the habit of consulting and acting under the advice of lawyers specially appointed to advise it. The purpose is the laudable one of insuring the perfect legality of the proceedings of the government; but this advan. tage necessarily involves some loss of time, during which the action of the executive is for the moment suspended. Is this practice inconsistent with the diligence required of a neutral government ? Honestly intending to do what was right, is it to be held responsible because a vessel equipped for war has taken advantage of such a delay, though perhaps, in the particular instance, accidentally prolonged ?
I can only answer these questions in the negative. I do so on the ground, as to some of them, that they are things which no govern ment could reasonably be asked to do; as to all, that they were not such things as a government of ordinary prudence and sagacity, carrying on its affairs in the usual way in which the affairs of governments are carried on, could have foreseen the necessity of providing for. Passing from the law, and the means which the law should place at the
disposal of a government, to enable it to repress intended
violations of neutrality on the part of its subjects, to the action of the government in the use of such means, it seems to me that two things are incumbent on a government:
1st. That it shall use due diligence to inform itself, by the use of the means at its disposal, whether a violation of the law is about to be committed ; and,
2d. That, being satisfied of the fact, it shall use due diligence in ap plying its means and power of prevention.
These conditions honestly and bona fide satisfied, no government, as it seems to me, can be held liable for the acts of its subjects, but such acts must be deemed to be beyond the reach of any control which it can reasonably be expected to exercise.
But here questions of great importance, and of equal difficulty, present themselves :
(1.) Is a government, intending faithfully to discharge its duty toward another government, to be held responsible for a mere error of judgment ? As, for instance, in thinking a vessel not liable, in point of law, to seizure, when in fact she was so; or in thinking the evidence in a particular case insufficient when it was sufficient.
(2.) Is a government wanting in due diligence if it declines to seize a vessel at the instance of a belligerent, when properly satisfied that, though there may be circumstances of a suspicious character, the only evidence which can be adduced will not justify the seizure before the law, and that the vessel will therefore be released !
(3.) Having seized a vessel, and brought the matter before the proper legal authority, is a government to be held responsible because, through
Action of governIrient
some mistake of the court, either of law or fact, there has been a miscarriage of justice?
(4.) Is it to be answerable for accidental delay, through which an opportunity becomes afforded to a vessel to evade the eventual decision of the government to seize her?
(5.) Is a government to be held responsible for error of judgment in its subordinate officers, especially when these officers are at great distance, and not acting under its immediate control? Is it, under such circumstances, to be answerable for their possible negligence, or even for their misconduct?
These are matters of infinite importance to neutral nations, who may be drawn within the vortex of wars in which they have no concern, if they are not only to be harassed and troubled by the demands and importunities of jealous and angry belligerents, but are, in addition, to be held responsible-to the extent, perhaps, of millions—for errors of judgment, accidental delay, judicial mistake, or misconduct of subordinate officers, acting not only without their sanction, but possibly in direct contravention of their orders.
We are not informed whether the two governments bare, in compliance with the pledge contained in the treaty of Washington, invited other nations to adopt its rules; but if it is to be established that these rules carry with them a liability so extensive, I should very much doubt whether such an invitation, if made, would be attended with much success.
Any decision of this tribunal founded on such a liability wouid have the effect, I should imagine, of making maritime nations look upon belligerent powers with very considerable dread.
It is to be remembered that a government cannot be taken to guarantee the event; in other words, to be answerable at all hazards and under all circumstances for a breach of neutrality by a subject, if it occurs. In spite of the law, and of the vigorous administration of the law, offenses will take place, and neither at home nor abroad can rulers be held, under all circumstances answerable to those who suffer from them. All that can be expected of the government of a country is that it shall possess reasonable means to prevent offenses, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the treaty, which require no more than “due diligence," exclude all notion of an absolute unconditional responsibility. This is evidently the meaning of an observation of the British counsel at the close of the fifth section of his argument on “due diligence,” which the president of the tribunal appears to have found some difficulty in understanding.
This being so, I have some difficulty in saying that a government acting in good faith, and desiring honestly to fulfill its obligations, can be held liable for errors of judgment, unless, indeed, these are of so patent a character as to amount to crassa neg. ligentia.
Prolonged and unnecessary delay is, in the very nature of things, incompatible with diligence. But delay, within reasonable limits, honestly intended for the investigation of facts or the due consideration of the proper course to be pursued, is not so.
Delay arising simply from accident ought not to be imputed as negligence. Accident can never be made the ground of an imputation of negligence, though it may found a legal claim where a party is in mora.
As regards the seizure of a vessel under the foreign-enlistment act, with a knowledge that the evidence would be insufficient to
Errors of judgment.
Seizure of vessels.
justify it, I hold that such a seizure, whether for the purpose of further. ing the ends of a belligerent, or because some suspicion might attach to the vessel, would have been unjustifiable both in policy and principle. For no government can be called upon to institute legal proceedings under such circumstances. Every government prosecution which ends in failure, is, in itself, productive of mischief. It lessens the authority of the executive by making it appear to have acted harshly and unjustly, and creates sympathy, perhaps unmerited, for parties against whom its efforts have been directed, and who have escaped from its pursuit. It impairs the authority of the law by leading to the belief that it may be infringed with impunity, thereby holding out encouragement to crime. A government would be acting in violation of the spirit of the constitution, as well as against law and right, if it seized a vessel, the property of a subject, unless it believed such vessel to be justly and legally liable to condemnation on legal and sufficient proof. Moreover, such a proceeding would be useless as well as arbitrary. The government would be unable to defer indefinitely the decision of the question, but, on the contrary, would be bound to submit the case to the proper tribunal at the earliest practicable moment. In the case supposed, the result would necessarily be that the vessel must be released and allowed to depart unmolested.
It must be borne in mind that the British government possesses no despotic or arbitrary power. It could neither assume nor exercise such a power, eren to protect a belligerent or maintain its own neutrality. As regards any miscarriage of justice in matters within the sphere of
the municipal law, it appears to me utterly out of the ques
tion to hold that a government, having done what in it lay, as by seizing a vessel and bringing it properly before the competent court, can be held liable because, through some mistake or accident, justice may have been defeated.
A breach of the law having been committed in the equipping or arning of a vessel for belligerent purposes, all that the government could do, under the foreign-enlistment act, was to seize the delinquent vessel, and bring it into a proper court for condemnation. This done, and the evidence of the facts in such a case having been submitted by the public prosecutor to the court, the functions of the government are at an end. It can do no more. The rest is with the law. In England, in America, in every well-constituted and well-regulated state, the executive and judiciary powers are separated by a broad and impassable barrier. There is no authority in the state, however bigh, that would venture to interfere with the discharge of the judicial office. It would be considered a violation of the most sacred principles, and an outrage on all propriety, to seek to control, or even to influence, directly or indirectly, the decision of a judge, even of the most inferior tribunal.
This being so, the government of a neutral cannot justly or reason. ably be held responsible for all the mischief which a vessel, equipped in violation of its law, may do throughout the course of, possibly, a protracted war because a suit which it has properly instituted fails through a mistake of the judge. To decide in the affirmative would be to establish a rule hitherto unknown, and calculated to impose on neutral states a degree of responsibility altogether unprecedented and unheard of. As regards liability for the acts or omissions of subordinate officers,
it seems to me that, while a government may properly be
held responsible for what is done, or omitted to be done, by its orders or under its own immediate control, it would be most unreasonable to hold it answerable for the acts or negligences of subordinates,
Liability for acts of subordinates,